United States District Court, N.D. California, San Francisco Division
In re Application of WEST FACE CAPITAL INC., Applicant.
ORDER GRANTING APPLICATION TO SERVE REQUEST FOR
DISCOVERY FOR USE IN A FOREIGN PROCEEDING RE: ECF NO.
BEELER UNITED STATES MAGISTRATE JUDGE
Face Capital Inc. is a defendant and counterclaimant in an
action pending before the Ontario Superior Court of Justice
in Toronto, Ontario, Canada. West Face alleges that the
counterclaim defendants in its Canadian action engaged in a
campaign to defame it, including by making false and
defamatory statements about it and its CEO in anonymous
postings on various internet websites. In an effort to
establish that the counterclaim defendants were responsible
for the anonymous statements, West Face filed two previous
applications on October 10, 2018 and April 8, 2019 under 28
U.S.C. § 1782 seeking leave to issue a subpoena to
Google LLC for documents related to certain Gmail email
addresses associated with the statements. The court granted
both applications. Based on the documents obtained, West Face
now seeks leave to issue a third subpoena to Google in
relation to eight Google email accounts that may be
associated with the defamatory statements made about West
Face. Google does not oppose West Face's
application. The court grants West Face's
application to serve its proposed subpoena on Google.
Face makes its application for discovery under 28 U.S.C.
§ 1782(a), which provides, inrelevant 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.
litigant in a foreign action qualifies as an
“interested person” under Section 1782. Intel
Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 256
(2004). 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. Id. at
258-59. 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).
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 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.
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 United States law would allow discovery in
an analogous domestic proceeding. See Intel, 542
U.S. at 247, 261-63.
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).
Face's application satisfies the three minimum statutory
requirements of Section 1782. First, West Face's
application seeks discovery from Google, whose principal
place of business is in the Northern District of California.
Second, the requested discovery is for use in a lawsuit
currently pending in Canada. Third, West Face ...