United States District Court, N.D. California, San Jose Division
ORDER GRANTING IN PART AND DENYING IN PART WITHOUT
PREJUDICE EX PARTE APPLICATION UNDER 28 U.S.C. § 1782
RE: DKT. NO. 1
VIRGINIA K DEMARCHI, UNITED STATES MAGISTRATE JUDGE.
United States, on behalf of the 2nd Civil Court for
Intellectual and Industrial Property Rights of Istanbul,
Turkey (“the Turkish Court”), has filed an ex
parte application for an order pursuant to 28 U.S.C.
§ 1782 authorizing service of a subpoena on Google, Inc.
for certain information relating to video images posted on
Google's YouTube platform. Dkt. No. 2 at 1; Dkt. No. 3,
Ex. A at 8.
Court grants the application in part and denies it in part
without prejudice, subject to the requirements set forth
to the application, the Turkish Court requests the United
States' assistance in obtaining information about the
subject video and YouTube account holder, the internet
protocol (“IP”) number(s) for the computer(s)
used in connection with the video, as well as the original
video itself, for use in an intellectual property dispute,
Cezmi Kardaş v. Astaş Holding A.Ş.
Dkt. No. 3, Ex. A at 8; Dkt. No. 8-1 at ECF 4. The United
States asks the Court to appoint Assistant United States
Attorney Claire T. Cormier as Commissioner to serve a
subpoena for the evidence sought by the Turkish Court and to
collect evidence in response to the subpoena. Dkt. No. 1; Dkt.
No. 2 at 3; Dkt. No. 4 ¶ 5.
to 28 U.S.C. § 1782, a district court may order the
production of documents or testimony for use in a foreign
legal proceeding, unless the disclosure would violate a legal
privilege. 28 U.S.C. § 1782(a); Intel Corp. v.
Advanced Micro Devices, Inc., 542 U.S. 241, 246-47
(2004). The statute may be invoked where: (1) the discovery
is sought from a person residing in the district of the court
to 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. at 246.
district court is not required to grant an application that
meets the statutory criteria, but instead retains discretion
to determine what discovery, if any, should be permitted.
Intel, 542 U.S. at 264. In exercising that
discretion, the court considers several 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 “conceals an attempt
to circumvent foreign proof-gathering restrictions or other
policies of a foreign country or the United States”;
(4) whether the discovery requested is “unduly
intrusive or burdensome.”
Intel, 542 U.S. at 264-65.
district court's discretion is guided by the twin aims of
§ 1782: providing efficient assistance to participants
in international litigation, and 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). The party seeking
discovery need not establish that the information sought
would be discoverable under the governing law in the foreign
proceeding or that United States law would allow discovery in
an analogous domestic proceeding. See Intel, 542
U.S. at 247, 261-63.
brought pursuant to 28 U.S.C. § 1782 typically are
considered on an ex parte basis, since
“‘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.'” IPCom GmbH & Co. KG v.
Apple, Inc., 61 F.Supp.3d 919, 922 (N.D. Cal. 2014)
(quoting In re Republic of Ecuador, No. C10-80225
MISC CRB (EMC), 2010 WL 3702427, at *2 (N.D. Cal. Sept. 15,
2010)). “Consequently, orders granting § 1782
applications typically only provide that discovery is
‘authorized,' and thus the opposing party may still
raise objections and exercise its due process rights by
challenging the discovery after it is issued via a motion to
quash, which mitigates concerns regarding any unfairness of
granting the application ex parte.” In re
Varian Med. Sys. Int'l AG, No. 16-mc-80048-MEJ, 2016
WL 1161568, at *2 (N.D. Cal. Mar. 24, 2016).
the district court orders otherwise, the discovery authorized
by the court must be obtained in accordance with the Federal
Rules of Civil Procedure. 28 U.S.C. § 1782(a); In re
Letters Rogatory from Tokyo Dist. ...