United States District Court, N.D. California, San Francisco Division
IN RE EX PARTE APPLICATION OF FRONTIER CO., 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
Frontier
Co., Ltd., alleges that an unknown individual posted
defamatory and unlawful statements about Frontier on a
Japanese website called 2 Channel.[1] 2 Channel features
discussions, social news, and web content
ratings.[2] Any individual may post content to the
website.[3] An unknown source posted the following
comment on October 6, 2013 under the title “Me! Me!
Transfer fraud Security measures”:
Suspected of defrauding 4.8 million yen in cash by saying
“you need to have purchased the resort membership to
return an item.” Other arrests were made from the
travel agency, “Apiness” (Toshima-ku), President
Etsuya Noguchi (32) = Akebono-cho, Tachikawa-shi, Tokyo.
Ishizuka and Noguchi both suspect, “I...Does anyone
know more about this article?[4]
On
October 9, 2013, an unknown source with the URL
http://n2ch.net/r/-/bouhan/1158989579/1-?guid=ON (“the
defendant account”) posted the following comment under
the same October 6, 2013, thread:
Former worker and younger brother (Masahiro Takashi) runs the
company Frontier Gate Corporation (Changed the company name
top Frontier Corporation?) Are you hiding in the arrest of
Etsuya Noguchi?[5]
Frontier
contends that the October 9, 2013 post constituted defamation
and unlawful business interference under Japanese
law.[6]
Frontier alleges that the purpose of the post was to harass
Frontier.[7] An internet search for Frontier brings up
the anonymous defendant's post, which could potentially
harm Frontier's current and future
business.[8]
Frontier
will bring a lawsuit in Japan against the person(s)
responsible for the anonymous post as soon as it learns the
identity of person(s) associated with the defendant
account.[9]
To that
end, Frontier seeks to serve subpoenas on Cloudflare, Inc.
for information related to the defendant
account.[10] Frontier conducted a search for the
owner of the defendant account through the Secretary of State
and received a statement of information that named Cloudflare
as the server for the defendant account.[11] Cloudflare
“uses a network of data centers to offer reverse-proxy
and content delivery services to other companies.”
Swarmify, Inc. v. Cloudflare, Inc., No. C 17-06957
WHA, 2018 WL 4680177, at *1 (N.D. Cal. Sept. 28, 2018). It
captures website data which may contain illegal information
from origin servers to create a cache and shows the content
of the cache to viewers.[12] Cloudflare could provide information
about the person who stored illegal information on the origin
server.[13]
The
proposed subpoena requests all documents identifying (1)
“origin server IP address;” (2) “account
information that registered the IP address of the origin
server in Cloudflare;” (3) “IP address and time
stamp when registering an origin server;” (4) “IP
address and time stamp when logged into Cloudflare control
panel by account;” (5) “name, address, email
address[, ] and telephone number of the account holder and
account holder settlement information (enough information to
refer to credit card company for credit card
payments).”[14]
ANALYSIS
1.
Governing Law
Frontier
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.
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 proceeding or that the United
States law would allow discovery in an analogous domestic
proceeding. See Intel, 542 U.S. at 247, 261- 63.
“Section 1782 is a provision for assistance to
tribunals abroad. It does not direct [the] United States
courts to engage in a comparative analysis to determine
whether analogous proceedings exist here.” Id.
When
considering an application for discovery pursuant to Section
1782, the court considers first whether it has the statutory
authority to grant the request and then whether it should
exercise its discretion to do so. Lazaridis v. Int'l
Centre for Missing and Exploited Children, Inc., 760
F.Supp.2d 109, 112 (D.D.C. 2011) (citations omitted).
2.
Application
2.1
First Amendment
Here,
the claimed acts are arguably defamation per se. The post in
question is under a discussion thread for an article accusing
the presidents of multiple companies, including Frontier, of
defrauding 4.8 million yen.[15] The post identifies Frontier
as one of the companies involved and accuses them of
“hiding in the arrest of Etsuya
Noguchi.”[16] Falsely charging a person with a crime
or violation of the “confidence reposed in him”
is per se defamatory. Wilens v. Doe Defendant No. 1,
No. 3:14-CV-02419-LB, 2015 WL 4606238, at *15 (N.D. Cal. July
31, 2015), report and recommendation adopted, No.
14-CV-02419-LHK, 2015 WL 5542529 (N.D. Cal. Sept. 18, 2015).
In the
context of § 1782 discovery, the court applies the
following test for “good cause” to issue
subpoenas for documents identifying the author of an online
post when the § 1782 application:
(1) identifies the party with sufficient specificity that the
court can determine that the party is a real person subject
to suit; (2) identifies all previous steps taken to locate
and identify the party; (3) demonstrates that the action can
withstand a motion to dismiss; and (4) proves that the
discovery is likely to lead to identifying information.
In re Ex Parte Application of Jommi, No. C 13-80212
CRB (EDL), 2013 WL 6058201, at *4 (N.D. Cal. Nov. 15, 2013)
(quoting Columbia Ins. v. Seescandy.com, 185 F.R.D.
...