United States District Court, N.D. California
In re Ex Parte Application of GIORGIO ARMANI S.P.A., Applicant, In For an Pursuant to 28 U.S.C. § 1782.
ORDER GRANTING APPLICATION FOR DISCOVERY IN AID OF
FOREIGN LITIGATION PURSUANT TO 28 U.S.C. § 1782. RE:
DKT. NO. 1
R. LLOYD UNITED STATES MAGISTRATE JUDGE
Giorgio Armani S.p.A. (“Armani”) requests
discovery in aid of a proceeding before the High Court of
Justice in England pursuant to 28 U.S.C. Section 1782. Dkt.
an investigation into a counterfeiting operation involving
its products, Armani applied for and received an order from
the English Court for the search and seizure of counterfeit
products and related documents and electronic accounts from
Universal Air Express Ltd. and Nasir Ali (“Ali”).
Dkt. No. 3, Freeman Decl., ¶¶ 3-5, Ex. A. These
related accounts included a Google Drive account associated
with the e-mail address
firstname.lastname@example.org. Id., at
¶ 5. During its search, Armani found that, in violation
of the English Court's order, (1) Ali had received an
e-mail from email@example.com tipping him
off to the impending search, and (2) unknown users sought to
delete information from the
Id., at ¶¶ 6-11. Armani is unaware of the
identities of the individuals associated with these accounts.
Id., at ¶ 7.
seeks the assistance of this court so that it may serve
proposed subpoenas on Google, Inc. Dkt. No. 1. The proposed
subpoenas seek the production of information associated with
the two e-mail accounts and related to the attempted
deletions described above. Id., Ex. 1.
parte applications are appropriate for seeking discovery
pursuant to Section 1782. Ex parte applications are common in
this context and “are typically justified by the fact
that the parties will be given adequate notice of any
discovery taken pursuant to the request and will then have
the opportunity to move to quash the discovery or to
participate in it.” In re Republic of Ecuador,
No. C-10-80225 MISC CRB (EMC), 2010 WL 3702427, at *3 (N.D.
Cal. Sept. 15, 2010) (quoting In re Letter of Request
from Supreme Court, 138 F.R.D. 27, 32 n.6 (S.D.N.Y.
to Section 1782, a district court may order a person residing
within its district to produce documents or testimony for use
in a foreign legal proceeding, unless the disclosure would
violate a legal privilege. 28 U.S.C. § 1782(a). This
statute may be invoked where (1) the discovery is sought from
a person residing in the judicial district in which the
application is made; (2) the discovery is for use in a
proceeding before a foreign tribunal; and (3) the applicant
is a foreign or international tribunal or an
‘interested person.'” Id.; Intel
Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241,
district court is not required to grant the application, but
instead retains discretion to determine what discovery, if
any, should be permitted. Id. at 264. In addition to
the statutory requirements, the Supreme Court has counseled
that the district court should consider the following
discretionary factors: (1) whether “the person from
whom discovery is sought is a participant in the foreign
proceeding”; (2) “the nature of the foreign
tribunal, the character of the proceedings underway abroad,
and the receptivity of the foreign government or the court or
agency abroad to U.S. federal-court judicial
assistance”; (3) whether the discovery request is
“an attempt to circumvent foreign proof-gathering
restrictions or other policies of a foreign country or the
United States”; and (4) whether the discovery requested
is “unduly intrusive or burdensome.” Id.
resides in Mountain View, Santa Clara County, California,
within the Northern District of California. The requested
discovery is for use in a foreign proceeding pending before
the High Court of England. Dkt. No. 3, Freeman Decl., ¶
5. And Armani, as a litigant in the foreign proceeding, is an
interested person. Intel Corp., 542 U.S. at 256.
Google is not a participant in the foreign proceeding, which
weighs in favor of permitting the discovery. (2) The English
Court is likely to be receptive to U.S. Court assistance.
Royal Bank of Scotland Plc v. Hicks  EWHC (Ch)
287 [94, 95, 96] (“The ability to apply for disclosures
under USC 1782 in aid of its proceedings in this country is a
facility available to any litigant.”). (3) Armani
asserts that it is not seeking to circumvent foreign
limitations on discovery, and the court has no reason to
believe otherwise. Finally, (4) the request is narrowly
tailored, and seeks only non-content subscriber information
and information related to specific account activities during
a limited time period.
discretionary factors weigh in favor of allowing the
requested discovery. As such, Armani's application for
discovery pursuant to Section 1782 is GRANTED. The instant
order is without prejudice to Google or another interested
party to seek to quash the subpoena. In the event any
discovery disputes arise, the parties shall comply with the
undersigned's Standing Order re: Civil Discovery