Opinion
5:23-mc-80230-EJD
10-19-2023
IN RE EX PARTE APPLICATION OF JUN MATSUMOTO, Plaintiff,
ORDER GRANTING IN PART AND DENYING IN PART EX PARTE APPLICATION FOR ORDER PERMITTING DISCOVERY FOR USE IN A FOREIGN PROCEEDING RE: DKT. NO. 1
EDWARD J. DAVILA United States District Judge
Before the Court is Mr. Jun Matsumoto's (“Applicant”) ex parte application for an order pursuant to 28 U.S.C. § 1782 to authorize discovery for use in a foreign proceeding (“Application”). Application, ECF No. 1. Specifically, Applicant seeks documents from Google, LLC (“Google”) to identify the Google account users who had published allegedly defamatory reviews about Applicant's business. For the reasons stated below, the Application is GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
Applicant has operated Ibaraki Motomachi Animal Hospital in Osaka, Japan since November 2017. Application 2. In or around March 2023, a review was posted on the Google Maps review page associated with Ibaraki Motomachi Animal Hospital by a Google account named “PON.” The review stated: “The hospital Director's telephone number significantly lacks common sense.” Id. In or around April 2023, a second review was posted on the Google Maps review page associated with Ibaraki Motomachi Animal Hospital by a Google account named “N T.” The review stated: “Not only did they not listen to what I had to say, it's horrible that they tell you wrong knowledge without hesitation by interrupting. I am never going back. Perhaps because they did not know that I'm a specialist as well, but you should have respect towards others no matter who they are. Let's listen to what others have to say.” Id. at 2-3.
Applicant intends to bring a lawsuit in Japan against the persons who control the Google accounts that posted the two reviews alleging defamation and unlawful interference with business under Japanese law. Id. at 3. Applicant has hired an attorney in Japan and plans to bring the lawsuit as soon as Applicant ascertains their identities. Id.
Specifically, Applicant requests a subpoena demanding that Google produce the following:
1. ALL DOCUMENTS sufficient to identify the user of the ACCOUNT 1 from the date Google Account was created to March 2023, including name, address (including postal code), e-mail address (including email address used for recovery or other purposes), and telephone number.
2. ALL DOCUMENTS sufficient to show the access log for the ACCOUNT 1 in March 2023, Japan Standard Time, including dates, times, IP addresses, and access type.
3. ALL DOCUMENTS sufficient to identify the user of the ACCOUNT 2 from the date Google Account was created to April 2023, including name, address (including postal code), e-mail address (including email address used for recovery or other purposes), and telephone number.
4. ALL DOCUMENTS sufficient to show the access log for the ACCOUNT 2 in April 2023, Japan Standard Time, including dates, times, IP addresses, and access type.Proposed Order 6-7, ECF No. 1-4.
II. LEGAL STANDARD
Title 28 United States Code § 1782(a) permits federal district courts to assist in gathering evidence for use in foreign proceedings. 28 U.S.C. § 1782(a); Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 247 (2004). The statute specifically authorizes a district court to order a person residing or found within the district “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.” 28 U.S.C. § 1782(a). 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.” Intel Corp., 542 U.S. at 246; Khrapunov v. Prosyankin, 931 F.3d 922, 925 (9th Cir. 2019).
In addition to the mandatory statutory requirements, the district court retains discretion in determining whether to grant an application under § 1782(a) and may impose conditions it deems desirable. Intel Corp., 542 U.S. at 260-61. In Intel Corp., the Supreme Court created a nonexhaustive list of factors to consider in ruling on a § 1782(a) request, including (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 § 1782(a) 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 264-66.
III. DISCUSSION
A. Statutory Factors
The Court finds that Applicant has satisfied the three statutory criteria of § 1782(a).
First, the Application satisfies the residence requirement because Google is headquartered in and has its principal place of business in Mountain View, California. See, e.g., In re Todo, 2022 WL 4775893, at *2 (N.D. Cal. Sept. 30, 2022) (“In this district, business entities are ‘found' where the business is incorporated, is headquartered, or where it has a principal place of business.”) (collecting cases); In re Med. Inc. Ass'n Takeuchi Dental Clinic, 2022 WL 10177653, at *2 (N.D. Cal. Oct. 17, 2022) (Google met residence requirement under 28 U.S.C. § 1782(a) due to headquarters and principal location in Mountain View). Therefore, Google resides or can be found in this district for the purposes of § 1782.
Second, the Court finds that the discovery is sought for use in foreign proceedings. If a § 1782(a) request is made when there is no currently pending proceeding, such a proceeding must be “likely to occur” or is “within reasonable contemplation.” Intel Corp., 542 U.S. 241 at 258-59. Here, Applicant has hired counsel in Japan, who filed a declaration stating that Applicant intends to bring a lawsuit in Japan against the persons who control the accounts that posted the reviews as soon as they ascertain their identities. Decl. Yasuhiro Watanbe (“Wantanbe Decl.”) ¶¶ 1, 8, ECF No. 1-1.
Third, Applicant is plainly an “interested person” in the contemplated foreign proceedings, as he would be the party bringing the defamation action. See Intel Corp., 542 U.S. at 256 (“No doubt litigants are included among, and may be the most common example of, the interested persons who may invoke § 1782”) (internal quotation marks and brackets omitted).
Based on the foregoing, the Court finds that the Application satisfies the statutory factors to warrant an order pursuant to § 1782.
B. Discretionary Intel Factors
At this stage, the Court also finds that the discretionary Intel factors weigh in favor of granting Applicant's ex parte application in part. However, the Court finds that the fourth factor weighs against Applicant's specific request for documents pertaining to the users' access logs and denies the Application as to that request.
1. Participation of Target in the Foreign Proceeding
Turning to the first factor, which addresses whether the discovery target is or will be a participant in the foreign proceeding, the relevant inquiry is “whether the foreign tribunal has the authority to order an entity to produce the . . . evidence.” In re Qualcomm Inc., 162 F.Supp.3d 1029, 1039 (N.D. Cal. 2016); see also In re Varian Med. Sys. Int'l AG, 2016 WL 1161568, at *4 (N.D. Cal. Mar. 24, 2016) (“[T]he first Intel factor militates against allowing § 1782 discovery when the petitioner effectively seeks discovery from a participant in the foreign tribunal even though it is seeking discovery from a related, but technically distinct entity.”) (quotation marks and citation omitted). Here, Google would not be a party in the Japan proceedings, and therefore, that foreign tribunal would be unable to compel Google to produce discovery without the aid of § 1782. Application 5. “In these circumstances, the need for assistance pursuant to § 1782(a) is greater than it would be in circumstances where the foreign tribunal may order parties appearing before it or third parties within its jurisdiction to produce evidence.” In re Med. Corp. Takeuchi Dental Clinic, 2022 WL 1803373, at *3 (N.D. Cal. June 2, 2022) (citing Intel, 542 U.S. at 264). Accordingly, the first Intel factor weighs in favor of granting Applicant's request.
2. Receptivity of Foreign Tribunal to U.S. Judicial Assistance
The second Intel factor also favors granting the Application. “Courts conducting this analysis focus on the utility of the evidence sought and whether the foreign tribunal [or court] is likely to receive the evidence.” In re Qualcomm Inc., 162 F.Supp.3d at 1040. “In the absence of authoritative proof that a foreign tribunal would reject evidence obtained with the aid of section 1782, courts tend to err on the side of permitting discovery.” In re Varian, 2016 WL 1161568, at *4 (internal quotation marks omitted). Here, the Court is unaware of any evidence that foreign courts in Japan would reject evidence obtained via § 1782, and Applicant cites to case law showing that Japanese courts have been receptive to the discovery assistance made by the U.S. courts. Application 6. Accordingly, given that there is no authoritative proof that a Japanese court would reject evidence obtained under § 1782, the second Intel factor weighs in favor of granting the Application.
3. Circumvention of Proof-Gathering Restrictions
The third factor-whether an applicant seeks “to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States”-also favors granting the Application. Intel Corp., 542 U.S. at 265.
“Courts have found that this factor weighs in favor of discovery where there is nothing to suggest that the applicant is attempting to circumvent foreign proof-gathering restrictions.” Med. Inc. Ass'n Smile Create, 547 F.Supp.3d 894, 899 (N.D. Cal. 2021) (quotations and citations omitted). Here, Applicant's counsel has represented that he is “not aware of any restrictions on proof-gathering procedures under Japanese law that would limit the gathering of the evidence Applicant seeks.” Application 6. The Court does not find that there is any reason to doubt Applicant's counsel's representations. Accordingly, there is nothing to indicate that the third Intel factor should weigh against granting the Application.
4. Unduly Intrusive or Burdensome
The fourth factor the Court must consider is whether the discovery sought is “unduly intrusive or burdensome.” Intel Corp., 542 U.S. at 265. Discovery requests may be intrusive or burdensome if “not narrowly tailored temporally, geographically or in their subject matter.” In re Qualcomm Inc., 162 F.Supp.3d at 1044.
Applicant's proposed subpoena seeks all documents sufficient to show the identity of the users of the two accounts, including the names and phone numbers registered to the account and IP addresses used to access the account. Proposed Order 6-7.
The Court finds this request to be narrowly tailored to only seek documents “sufficient to show” the identifying information associated with the Google accounts in question, as opposed to a request seeking “all documents” relating to the account. See, e.g., In re Plan. & Dev. of Educ., Inc., 2022 WL 228307, at *5 (N.D. Cal. Jan. 26, 2022) (modifying § 1782 subpoena from seeking “all” identifiers to only seek information “sufficient to identify” the users). This limitation on the subpoena's scope suggests that the requested discovery is not “unduly intrusive or burdensome.”
However, Applicant's proposed subpoena also seeks all documents to show the access log for the two accounts during the months the reviews were posted, including dates, times, IP addresses, and access types. Proposed Order 7.
The Court finds that this request is unduly intrusive, as it does not serve the purpose of ascertaining the identity of the users of the two accounts. Applicant argues that it requires the access logs because “[i]t is highly unlikely that the perpetrators use their true name and address to create their Google account. Accordingly, the Subject Account holders probably did not use their true names and addresses. In that case, access logs are needed to identify the perpetrators.” Application 7. However, Applicant's argument assumes facts that the Court cannot accept at this time-apart from Applicant's assumptions, there are no facts to suggest that the accounts are registered under fake names and address. Rather, unnecessarily producing detailed documents revealing the users' action log for an entire month would likely produce personal information entirely unrelated to this action. Given that Applicant has provided no concrete reason as to why this information is necessary for its action at this time, Applicant has not shown how this request is narrowly tailored to the subject matter of their action.
Therefore, the Court finds that the fourth Intel factor favors granting Applicant's request for all documents sufficient to show the identity of the users of the two accounts, including the names and phone numbers registered to the account and IP addresses used to access the account.
However, the Court will exercise its discretion and DENY Applicant's request for all documents showing the access log for the two accounts during the months the reviews were posted, including dates, times, IP addresses.
* * *
Accordingly, the Court will exercise its discretion in granting the Application in part with certain limitations and requirements and without prejudice to any subsequent motion to quash or modify the subpoena.
IV. CONCLUSION AND ORDER
Based on the foregoing, the Court finds that Applicant's § 1782 Application satisfies the statutory factors, and that the discretionary Intel factors-at this stage, at least-also favor granting the Application as to the documents necessary to ascertain the users' identity, but not as to the documents detailing the users' access log.
Accordingly, the § 1782 Application is GRANTED IN PART and DENIED IN PART. Applicant may serve the attached amended subpoena on Google, with the following requirements:
1. Applicant SHALL serve a copy of this Order on Google with the proposed subpoenas;
2. No later than 10 days after service of the subpoenas, Google SHALL NOTIFY all account
users whose personal identifying information is affected by the subpoenas that their identifying information is being sought by Applicant and PROVIDE a copy of this Order to each account user;
3. Google SHALL use all means of communications associated with the Google accounts to contact and notify the affected individuals of the subpoenas;
4. Google and each account user whose information is sought may file-no later than 30 days after service or notice-a motion to quash or modify the subpoenas before this Court;
5. Any account user seeking to quash or modify the subpoenas may appear and proceed before this Court under a pseudonym;
6. If any party disputes the subpoenas, Google SHALL PRESERVE BUT NOT DISCLOSE the information sought by the subpoena pending resolution of that dispute;
7. This Order is WITHOUT PREJUDICE to any argument that may be raised in a motion to quash or modify the subpoena from Google or any account users.
IT IS SO ORDERED.