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Request from the District Court of Lugano v. PKB Privatbank S.A.

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

August 26, 2019

REQUEST FROM THE DISTRICT COURT OF LUGANO, SWITZERLAND FOR INFORMATION FROM OATH HOLDINGS, INC. RE Marta Jankovska
v.
PKB Privatbank S.A., RE NO. OR.2016.233

          ORDER RE EX PARTE APPLICATION FOR DISCOVERY PURSUANT TO 28 U.S.C. § 1782 Re: Dkt. No. 1

          VIRGINIA K. DEMARCHI UNITED STATES MAGISTRATE JUDGE

         The United States, on behalf of the District Court of Lugano, Switzerland (“Swiss Court”), has filed an ex parte application for an order pursuant to 28 U.S.C. § 1782 authorizing service of a subpoena commanding Oath Holdings, Inc. (“Oath”) to produce documents in response to a proposed subpoena.[1] Dkt. Nos. 1, 3, Exs. 6 & 6A.

         The Court grants the application, subject to the modifications described below.

         I. BACKGROUND

         According the application, the Swiss Court requests the United States' assistance in obtaining evidence from Oath in connection with a civil case, Marta Janokovska v. PKB Privatbank SA, No. OR.2016.233. The case concerns an alleged unauthorized transfer of funds from an account held by the plaintiff with PKB Privatbank. The Swiss Court seeks information from Oath concerning two Yahoo! email accounts that are alleged to have been hacked and then used to direct the unauthorized transfer of funds. Dkt. No. 2 at 2-3; Dkt. No. 3, Ex. 1. The United States says that Oath Holdings resides or is found in Sunnyvale, California. Dkt. No. 2 at 6; Dkt. No. 3 ¶ 5.

         The United States asks the Court to appoint Assistant United States Attorney Michael T. Pyle as Commissioner for the purpose of issuing a subpoena to Oath. Dkt. No. 2 at 10.

         II. LEGAL STANDARD

         Pursuant 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.

         A 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”; and (4) whether the discovery requested is “unduly intrusive or burdensome.” Intel, 542 U.S. at 264-65.

         A 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.

         Applications 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).

         Unless 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. ...


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