United States District Court, N.D. California, San Jose Division
REQUEST FROM THE DISTRICT COURT OF LUGANO, SWITZERLAND FOR INFORMATION FROM OATH HOLDINGS, INC. RE Marta Jankovska
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
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. Dkt. Nos. 1, 3, Exs. 6 &
Court grants the application, subject to the modifications
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.
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.
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”;
and (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,
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
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