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In re Letter Rogatory

United States District Court, N.D. California, San Francisco Division

July 12, 2019

In re LETTER ROGATORY - REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE RE LIROLA, NYDIA VS. LANATA, ET AL., FILE NO. 27400/2016, NATIONAL COURT IN CIVIL MATTERS NO 89 OF THE REPUBLIC OF ARGENTINA FOR INFORMATION FROM FACEBOOK IRELAND LTD.

          ORDER GRANTING EX PARTE APPLICATION TO SERVE SUBPOENAS FOR DISCOVERY FOR USE IN A FOREIGN PROCEEDING RE: ECF NO. 1

          LAUREL BEELER, UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         On January 16, 2019, the Office of International Judicial Assistance at the United States Department of Justice received a Letter Rogatory from the National Court in Civil Matters in Argentine, Republic of Argentina (“the Argentine Court”).[1] In the Letter Rogatory, the Argentine Court orders that Facebook provide the following:

(1) The name of the individual or the name of the legal entity under which the account Nydia Lirola is registered, www.facebook.com/nydia.lirola.[2]

         The information will be used in a proceeding in the Argentine Court.[3]

         On March 21, 2019, Assistant United States Attorney (“AUSA”) Gioconda Molinari emailed Jacqueline Kort, counsel for Facebook, asking if Facebook would voluntarily provide the requested information.[4] Ms. Kort replied that Facebook “will be able to produce the requested user information with a subpoena.”[5]

         On July 3, 2019, the United States filed an ex parte application to appoint AUSA Giaconda Molinari as Commissioner in order to subpoena Facebook for the user information sought by the Argentine Court pursuant to 28 U.S.C. § 1782(a).[6] The court grants the application, appoints AUSA Molinari as Commissioner, and authorizes service of the subpoena on Facebook.

         ANALYSIS

         1. Governing Law

         The United States makes its application for discovery under 28 U.S.C. § 1782(a), which provides in relevant part:

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 pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or 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. . . . A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.

28 U.S.C. § 1782(a). In order to apply for discovery pursuant to Section 1782, a formal proceeding in the foreign jurisdiction need not be currently pending, or even imminent. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 258-59 (2004). Instead, all that is necessary is that a “dispositive ruling” by the foreign adjudicative body is “within reasonable contemplation.” Id. at 259 (holding that discovery was proper under Section 1782 even though the applicant's complaint against the opposing party was only in the investigative stage). An ex parte application is an acceptable method for seeking discovery pursuant to Section 1782. See In re Letters Rogatory from Tokyo Dist., 539 F.2d 1216, 1219 (9th Cir. 1976) (holding that the subpoenaed parties may raise objections and exercise their due process rights by bringing motions to quash the subpoenas).

         A district court has wide discretion to grant discovery under Section 1782. Intel, 542 U.S. at 260-61. In exercising its discretion, a district court should consider the following factors: (1) whether the “person from whom the 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 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 request is “unduly intrusive or burdensome.” Id. at 264-65.

         A district court's discretion is to be exercised in view of the twin aims of Section 1782: (1) providing efficient assistance to participants in international litigation and (2) encouraging foreign countries by example to provide similar assistance to our courts. Schmitz v. Bernstein Liebhard & Lifshitz, LLP,376 F.3d 79, 84 (2d Cir. 2004). There is no requirement that the party seeking discovery establish that the information sought would be discoverable under the governing law in the foreign ...


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