Opinion
No. C 06-80196 JSW MISC (BZ).
October 19, 2006
ORDER DENYING RESPONDENTS' MOTIONS TO QUASH SUBPOENA TO YAHOO, INC.
Before me are John Does' and Richard London's motions to quash a subpoena directed to Yahoo, Inc. ("Yahoo").
On July 31, 2006, I granted in part applicant Jennifer London's renewed ex parte application for an order to conduct discovery for use in a foreign legal proceeding pursuant to 28 U.S.C. § 1782. The order authorized applicant to serve a subpoena directed to Yahoo commanding the production of certain information related to the e-mail accounts of wrest36@yahoo.com, wrest39@yahoo.com, readyset44@yahoo.com, tryit360@yahoo.com, and parisfait2000@yahoo.com. On August 22, 2006, Does, asserting they are the users of wrest36@yahoo.com, wrest39@yahoo.com, readyset44@yahoo.com, and tryit360@yahoo.com, moved to quash the subpoena to Yahoo. Richard London, the admitted user of parisfait2000@yahoo.com, moved to quash the following day.
Applicant is a party to a pending divorce proceeding with Richard London in the Court of Basse-Terre, Guadeloupe.
Does and Richard London ("respondents") make similar arguments in support of their motions. First, respondents argue that applicant did not meet her burden under 28 U.S.C. § 1782(a). Whether to grant a discovery request under section 1782(a) is within the court's discretion, as guided by the factors described in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004).
The four factors the court should consider in ruling on a § 1782(a) request are: (1) whether the person from whom evidence is sought is a participant in the foreign proceeding; (2) the nature of the foreign tribunal, the character of the proceeding 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 application is an effort 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. Intel Corp., 542 U.S. at 264-265.
I am not persuaded that I should decline to resolve a discovery dispute over which this court has jurisdiction simply because the foreign proceeding involves family law matters. The judge in the foreign tribunal will have ultimate say over the admissibility of the evidence submitted under subpoena. Respondents offer inadequate support for their argument that the application was an effort to circumvent legal obstacles in the foreign court. Nor is the subpoena unduly intrusive. Respondents' asserted privacy concerns are lessened by applicant's removal of "item five" from the subpoena and by this court's orders concerning the manner of disclosure. For these reasons, I find that it was within my discretion to grant applicant's discovery request for use in her foreign divorce proceeding.
"Item five" sought documents reflecting the board postings made by the users subject to the subpoena. The subpoena is now limited to items one through four, which request information related to identification, and not information regarding the content of any communications. See Decl. of Damien P. Lillis, ¶ 3 and Ex. B.
Respondents also argue that the subpoena to Yahoo should be quashed under Federal Rule of Civil Procedure 45(c)(3)(A), on the ground that compliance would disclose matters privileged under the First Amendment. Citing Highfields Capital Mgmt. L.P. v. Doe, 385 F. Supp. 2d 969 (N.D. Cal. 2004), respondents argue that the discovery would violate their qualified privilege under the First Amendment to engage in anonymous speech. Highfields denied early discovery to uncover the identity of an anonymous internet poster of sardonic commentary on the performance and policies of plaintiff, a large, publicly traded company which had sued the poster for trademark infringement, commercial disparagement, and defamation. In view of the strong protection the First Amendment affords anonymous speech on matters of public concern, the court refused to allow discovery of the identity of the defendant where plaintiff did not meet its heightened burden of demonstrating that defendant likely engaged in wrongful conduct harmful to plaintiff. Id. at 971, 976-80.
Highfields is not controlling. Applicant does not seek to impose liability based on anonymous statements regarding matters of public concern. Rather, applicant seeks discovery to confirm that the user behind specified e-mail accounts is in fact Richard London. Nor are the users of the e-mail accounts truly anonymous. Richard London admits that he is the user of parisfait2000@yahoo.com. See Supp. Decl. of Richard London ¶ 3. The internet postings submitted by applicant strongly suggest that the Does and Richard London are the same person. The fact that neither Richard London nor the Does deny that they are not the same person lends further credence to applicant's belief as to their true identity.
Respondents' papers, however, may also be construed as asserting privacy interests. See Notice of Motion and Motion [of Richard London] to Quash Subpoenas to Yahoo Inc., p. 5 (noting that compliance with the subpoenas "would violate Respondent's right of privacy in his personal communications"); Notice of Motion and Motion of Nonparty Does to Quash Subpoenas to Yahoo! Inc., p. 8-9 (describing the interests at stake as involving the right of anonymous communication). Taken this way, the issue is whether Yahoo's compliance with the subpoena violates respondents' right to keep private their personal communications and memberships to Yahoo user groups.
Federal Rule of Civil Procedure 26 "allows a court to limit discovery where `the burden . . . outweighs its likely benefit.'"Humphreys v. Regents of the Univ. of Cal., 2006 WL 335275, at *1 (N.D. Cal. Feb. 13, 2006) (quoting Fed.R.Civ.P. 26(b)(2)). "`Although the Rule contains no specific reference to privacy or to other rights or interests that may be implicated, such matters are implicit in the broad purpose and language of the Rule.'" Id. (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35 n. 21 (1984); see also Soto v. City of Concord, 162 F.R.D. 603, 616 (N.D. Cal. 1995) (discussing the recognition by federal courts of a right of privacy that can be raised in the context of discovery requests).
Assuming without deciding, that Richard London, a resident of Guadalupe, and the Does, whose residency has not been established, have a cognizable privacy interest — an issue neither party has fully briefed — their motions still must fail. Respondents essentially assert an interest in not having their names, contact information, IP addresses, and Yahoo user group memberships disclosed. For the reasons already discussed, this interest is not overly strong in the context of this case. In contrast, the information bears directly on applicant's ability to obtain a divorce in Basse-Terre. Under French law, adultery is grounds for a fault-based divorce. See Supplemental Decl. of Anne-Isabelle Gregori ¶ 4. The subject e-mail accounts are clearly linked to internet postings in which the users solicit adult sex.
Respondents additionally argue that the French-to-English Non Concilation [sic] order entered by the Tribunal De Grande Instance De Basse-Terre and attached to applicant's subpoena request was not a properly authenticated translation and, therefore, is inadmissible. Because I reach my decision without reliance on that document, I find the argument moot.
Of course, the foreign court will decide the admissibility and weight that should be given to the evidence submitted under subpoena. Applicant, however, has clearly demonstrated the relevance of this information, and it is unclear how she would otherwise obtain it. I find that the burdens on respondents do not outweigh applicant's need for discovery.
To the extent respondents have privacy concerns, I find they can be accommodated by placing some limits on production. "A district court has broad discretion in controlling discovery."Jackson v. Montgomery Ward Co., Inc., 173 F.R.D. 524, 526 (D. Nev. 1997) (citing Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). The adversarial character of the underlying divorce proceeding cautions restraint. In addition, insofar as the information may enable unwanted contact with the addressee, limiting disclosure is proper. See, e.g., Painting Industry of Hawaii Market Recovery Fund v. U.S. Dept. of Air Force, 26 F.3d 1479, 1484-85 (9th Cir. 1994) (recognizing in the context of a FOIA request that persons have a privacy interest in their home addresses). Accordingly, I conclude that Yahoo will furnish the information pursuant to the conditions set forth below. See, e.g., ICG Communications, Inc. v. Allegiance Telecom, 211 F.R.D. 610, 614 (N.D. Cal. 2002) (compelling production but finding good cause to limit discovery via a protective order issued under Fed.R.Civ.P. 26(c)).
For the reasons stated above, respondents' motions to quash are DENIED. IT IS HEREBY ORDERED that Yahoo provide subpoenaed items one through four to applicant pursuant to the Model Stipulated Protective Order found on this court's website or such other protective order to which all interested parties stipulate. Specifically, Yahoo shall furnish the requested documents to applicant's San Francisco counsel by November 1, 2006. Yahoo shall simultaneously furnish a copy of the documents relating to Richard London's account to Richard London and those relating to the Does' accounts to Does' counsel. If it appears from the documents that Richard London is the user behind one or more of the e-mail accounts, applicant's local counsel may forward the pertinent documents to applicant's foreign counsel. Applicant's local counsel shall immediately return to Yahoo all documents not related to a Richard London's e-mail account.