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Super Vitaminas, S. A.

United States District Court, N.D. California

November 20, 2017

SUPER VITAMINAS, S. A., Applicant.

          ORDER GRANTING SUPER VITAMINAS'S EX PARTE APPLICATION RE: DKT. NO. 1

          SUSAN VAN KEULEN, UNITED STATES MAGISTRATE JUDGE

         Before the Court is an ex parte application by Super Vitaminas, S.A. (“Super Vitaminas”) for an order to obtain discovery from Google, Inc. (“Google”) and Microsoft Corporation (“Microsoft”) for use in foreign criminal proceedings in Guatemala. On November 9, 2017, this Court ordered Super Vitaminas to provide supplemental briefing or evidence regarding the Stored Communications Act. ECF 6. On November 13, 2017, Super Vitaminas filed two declarations in further support of its application. ECF 7, 8. Having considered Super Vitaminas's brief and declarations, the Court GRANTS the application.

         I. BACKGROUND

         Super Vitaminas is a Guatemalan company headquartered in Guatemala City. It is a franchisee of GNC, a U.S.-based global retailer of specialty health and wellness products, including vitamins, herbal supplements, sports nutritional products and diet products. Super Vitaminas imports these products from GNC through freight-forwarders for resale in Guatemala. Super Vitaminas has recently become the target of a criminal complaint and prosecution by Guatemalan taxing authorities alleging that the company failed to report and pay certain taxes on products imported in 2012. Super Vitaminas believes that information its former freight forwarder emailed the company in 2012 at the time of the imports will exonerate the company from the criminal charges. The freight forwarder sent the information to Super Vitaminas's employees, Magdalena Herrera and Juan Roberto Castro, from a Microsoft Hotmail email account. Super Vitaminas's employees received the emails on their company Google Gmail accounts. Super Vitaminas no longer has access to these emails. ECF 4 at ¶ 4 (Declaration of Juan Miguel Martinez Lemus, IT Manager for Super Vitaminas). Super Vitaminas now seeks to obtain emails between its two employees and the freight manager from Google and Microsoft.

         II. LEGAL STANDARD

         Super Vitaminas's application is brought pursuant to 28 U.S.C. § 1782, which states as follows:

The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made ...upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court....To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.

28 U.S.C. § 1782(a). The purpose of § 1782 is “to provide federal-court assistance in the gathering of evidence for use in foreign tribunals.” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 247 (2004); see also Schmitz v. Bernstein Liebhard & Lifshitz, LLP, 376 F.3d 79, 84 (2d Cir. 2004) (noting that Section 1782 has the “twin aims” of “providing efficient means of assistance to participants in international litigation in our federal courts and encouraging foreign countries by example to provide similar means of assistance to our courts”) (citation and internal quotation marks omitted).

         A district court is authorized to grant a § 1782 application where (1) the person from whom the discovery is sought resides or is found in the district of the district court to which the application is made, (2) the discovery is for use in a proceeding before a foreign tribunal, and (3) the application is made by a foreign or internal tribunal or “any interested person.” 28 U.S.C. § 1782(a); see also In re Republic of Equador, No. C-10-80255-CRB (EMC), 2010 WL 3702427 at *2 (N.D. Cal. Sept. 15, 2010).

         “However, simply because a court has the authority under § 1782 to grant an application does not mean that it is required to do so.” In re Republic of Equador, 2010 WL 3702427 at *2 (citing Intel, 542 U.S. at 264). The Supreme Court has identified several discretionary factors that a court should take into consideration in ruling on a § 1782 request:

(1) whether the material sought is within the foreign tribunal's jurisdictional reach and thus accessible absent Section 1782 aid; (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 jurisdictional assistance; (3) whether the Section 1782 request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States; and (4) whether the subpoena contains unduly intrusive or burdensome requests.

Id. (citing Intel, 542 U.S. at 264-65). It is both common and proper to conduct an ex parte process for a request to obtain an order authorizing discovery pursuant to § 1782. Id. (summarizing cases).

         III. DISCUSSION

         a. Authority ...


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