United States District Court, N.D. California
ORDER ON EX PARTE APPLICATION FOR ORDER PURSUANT TO
28 U.S.C. § 1782 PERMITTING DISCOVERY FOR USE IN FOREIGN
PROCEEDING RE: DKT. NO. 1
VAN KEULEN, UNITED STATES MAGISTRATE JUDGE
the Court is the ex parte application of Tonggui Xie
(“Mr. Xie”), Canphoenix Enterprises Ltd.
(“Canphoenix”), Inspire Group Trites Project
Corporation (“Inspire Group”), and Inspire Group
Development Corporation (“Inspire Group
Development”) (collectively, “Applicants”)
for an order pursuant to 28 U.S.C. § 1782 authorizing
service of a subpoena for documents on Google LLC
(“Google”). Dkt 1. The proposed subpoena seeks
all non-content email headers, including the “to”
and “from” lines and the dates, from the Google
email account of Terry Lai (“Mr. Lai”). Dkt. 4-1.
Applicants allege that Mr. Lai is guilty of breach of
contract, conspiracy, and misappropriation under Canadian
law. Dkt. 1 at 2. Accordingly, the Court
GRANTS the application on the conditions and
for the reasons discussed below.
following section outlines the facts as represented by
Applicants. On or about November 16, 2012, Mr. Xie and Mr.
Lai entered into a Joint Venture Agreement
(“Agreement”). Dkt. 2 (“Xie Decl.”)
¶ 1. Mr. Xie advanced $2,000,000.00 to Mr. Lai, who,
pursuant to the Agreement, was to invest that money into
0843003 B.C. Ltd. Id. ¶ ¶ 2-4. Mr. Lai
failed to comply with the terms of the Agreement and instead
misappropriated the money that was payable to Applicants.
Id. ¶ ¶ 8-13. Applicants filed a suit
against Mr. Lai in Canada and after Mr. Lai failed to comply
with the British Columbia Supreme Court’s rules,
Applicants sought relief by filing a Notice of Application
for an order requiring Google to produce documents associated
with Mr. Lai’s email account in the British Columbia
Supreme Court. Dkt. 1 at 3-4; Pun Decl. ¶ 10; Dkt. 3-1,
Ex. H. Applicants explained in their Notice that they feared
Mr. Lai would delete the emails associated with his account
and, per Google’s support, any emails that had already
been deleted by Mr. Lai could not be recovered by Google.
Dkt. 1 at 4; Pun Decl. ¶ ¶ 9, 11; Dkt. 3-1, Ex. H.
The order was granted and Google was ordered to produce
documents to an Independent Reviewing Solicitor. Dkt. 1 at 4;
Pun Decl. ¶ 12; Ex. I. As a result, Applicants seek
discovery of Mr. Lai’s non-content email headers from
Google, without prior notice to Mr. Lai. Dkt. 4-1 at 1.
district court may order the production of documents or
testimony for use in a foreign legal proceeding under 28
U.S.C. § 1782, as long as the disclosure would not
violate a legal privilege. 28 U.S.C. § 1782(a);
Intel Corp. v. Advanced Micro Devices, Inc., 542
U.S. 241, 249 (2004). “The order may prescribe the
practice and procedure . . . for taking the testimony or
statement or producing the document or other thing,”
and to the extent that the order does not prescribe
otherwise, the documents must be produced in accordance
with the Federal Rules of Civil Procedure. 28 U.S.C. §
1782(a); In re Letters Rogatory from Tokyo Dist.
Prosecutor’s Office, Tokyo, Japan, 16 F.3d 1016,
1020 (9th Cir. 1994) (emphasis added). An applicant may
invoke § 1782 where: (1) the discovery is sought from a
person or entity 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.” 28 U.S.C. § 1782(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. Several factors guide the
Court’s decision on a Section 1782(a) request: (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
discovery requested is “unduly intrusive or
burdensome.” Id. at 264–65. 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. Id.
at 247, 261-63.
district court’s discretion is guided by the twin aims
of Section 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).
Applications made under 28 U.S.C. § 1782 are typically
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. C-10-80225 MISC CRB
(EMC), 2010 WL 3702427, at *2 (N.D. Cal. Sept. 15, 2010))
(internal quotation marks omitted). “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 Ex Parte Application Varian Med.
Sys. Int’l AG, Applicant, No. 16-mc-80048-MEJ,
2016 WL 1161568, at *2 (N.D. Cal. Mar. 24, 2016). However,
“there may be circumstances where it is appropriate for
a successful § 1782 petitioner to refrain from providing
notice to potential adverse parties.” In re Rivada
Networks, 230 F.Supp.3d 467, 474 (E.D. Va. 2017).
“In those circumstances a court may, as § 1782
permits, state that the Federal Rules of Civil Procedure do
not apply.” Id.
application satisfies the statutory requirements of Section
1782(a). First, the subpoena seeks discovery from Google,
which has its principal place of business in this District.
Dkt. 1 at 5. Second, Applicants request this discovery for
use in a civil action that has already been filed in Canada.
Id. at 5-6. Third, Applicants are the plaintiffs in
the Canadian action and are thus interested persons within
the meaning of the statute. Id. at 7.
the application satisfies the statutory requirements, the
Court must also determine whether judicial assistance is
appropriate by considering the Intel factors.
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