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. ...