Opinion
22-mc-80063-JCS
03-15-2022
In re YASUYOSHI ANAHARA, Applicant.
ORDER REGARDING APPLICATION UNDER 28 U.S.C. § 1782
Re: Dkt. No. 1
JOSEPH C. SPERO, CHIEF MAGISTRATE JUDGE
I. INTRODUCTION
Yasuyoshi Anahara filed an ex parte application under 28 U.S.C. § 1782 for an order authorizing limited discovery from Google, LLC regarding an allegedly defamatory review posted on his restaurant's business profile. For the reasons discussed below, the application is GRANTED IN PART, without prejudice to any recipient of a subpoena or other interested party moving to quash.
II. BACKGROUND
Anahara is the sole proprietor of a restaurant in Japan, which is located in a building owned by his mother. Anahara Decl. (dkt. 1-1) ¶¶ 1-2, 11. On November 10, 2021, an anonymous user with the display name (Image Omitted) ("Kanabun"), which was later changed to (Image Omitted) ("Penguin"), left a one-star review of the restaurant on the restaurant's Google Maps profile. Id. ¶ 10. The review accuses Anahara and his wife of forcing his mother out of her home and into a care facility, stealing the restaurant and an attached home from his mother, not paying rent that was promised after his mother "lent her son the store that she was leasing to someone else," and "taking back the title document and registry from the person who was entrusted with it." Katsurada Decl. (dkt. 1-3) Ex. A (English translation from Japanese).
Anahara suspects that his mother's brother-who had previously borrowed a substantial sum of money from his mother and held her title document to the building-wrote the review, or that it was someone connected with his mother's brother. Anahara Decl. ¶¶ 12(iii), 15. Anahara admits that he and his wife were involved in the decision to move his mother to a care facility, but states that they did so only at the urging of her doctor after her dementia caused her to endanger herself and others, and despite their initial unwillingness to do so. Id. ¶ 12(i). He asserts that the reference to the restaurant having been rented to someone else is false (it was vacant when his mother asked him to operate it to help ameliorate her financial distress as result of losing rent from the previous tenant), as is the reference to failure to pay promised rent (there was no agreement to pay rent, and he and his wife have provided more financial support to his mother than the previous tenant's rent). Id. ¶ 12(ii). Anahara asserts that he had his mother's brother return the title and registry documents (as well as the money he had borrowed) at his mother's request, and after her brother had refused her direct requests to do so. Id. ¶ 12(iii). He states that his mother still owns the building, and that the accusation that he and his wife stole the house and store is false. Id. ¶ 12(iv).
The review has negatively affected the restaurant's business. Id. ¶ 13. Anahara intends to bring civil lawsuits for reputational torts under Japanese law, but cannot do so without first identifying who wrote the review. Id. ¶¶ 16-18.
III. DISCUSSION
A. Legal Standard
Section 1782 provides, in relevant 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 .... The order may be made . . . upon the application of any interested person ....28 U.S.C. § 1782(a). Section 1782 permits district courts to authorize discovery where the following requirements are met: "(1) the person from whom the discovery is sought 'resides or is found' in the district of the district court where the application is made; (2) the discovery is 'for use in a proceeding in a foreign or international tribunal'; and (3) the application is made by a foreign or international tribunal or 'any interested person.'" Khrapunov v. Prosyankin, 931 F.3d 922, 925 (9th Cir. 2019) (citations omitted).
A litigant in a foreign action qualifies as an "interested person" under § 1782. See Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 256 (2004). Further, § 1782 does not require that a formal proceeding in the foreign jurisdiction is currently pending, or even imminent; rather, a court may permit discovery under Section 1782 so long as a "dispositive ruling" by the foreign adjudicative body is "within reasonable contemplation." In re Hoteles City Express, No. 18-mc-80112-JSC, 2018 WL 3417551, at *2 (N.D. Cal. July 13, 2018) (quoting Intel, 542 U.S. at 256).
Even if the basic requirements of § 1782 are satisfied, however, a district court has wide discretion in deciding whether to permit discovery under § 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.
"A district court's discretion is to be exercised in view of 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." In re Nat'l Ct. Admin, of the Republic of Korea, No. C15-80069 MISC LB, 2015 WL 1064790, at *2 (N.D. Cal. Mar. 11, 2015) (citing Schmitz v. Bernstein libehard & lifshitz, IIP, 376 F.3d 79, 85 (2d Cir. 2004)). The party seeking discovery need not establish that the information sought would be discoverable under the foreign court's law or that the U.S. would permit the discovery in an analogous domestic proceeding. See Intel, 542 U.S. at 247, 261-63.
B. The Statutory Requirements Are Met
Anahara's application meets the minimum statutory requirements under § 1782. Anahara has established that he is an "interested person" seeking "documents or things" for use in a foreign proceeding. See Anahara Decl. ¶ 18 ("Once the true identity ... is revealed, I intend to and will file civil lawsuits against all of the Anonymous Individuals for damaging the reputation of the Clinic"). Google is headquartered in Mountain View, California, in this district. The Court therefore has authority to issue this subpoena.
C. The First Discretionary Factor
Courts next consider the four discretionary Intel factors in deciding whether to grant the application. The first discretionary factor considers whether the application seeks discovery from participants in the foreign proceeding. Intel, 542 U.S. at 247. "[N]onparticipants in the foreign proceeding may be outside the foreign tribunal's jurisdictional reach; hence, their evidence, available in the United States, may be unobtainable absent § 1782(a) aid." Intel, 542 U.S. at 264; see also In re Varian Med. Sys. Int'l AG, No. 16-mc-80048-MEJ, 2016 WL 1161568, at *3 (N.D. Cal. Mar. 24, 2016) ("[T]he key issue is whether the material is obtainable through the foreign proceeding." (citation omitted)). As such, the first discretionary factor favors discovery against nonparticipants in foreign proceedings. Cf. In re Varian Med. Sys., 2016 WL 1161568, at *4 (finding that the First Intel factor weighs heavily against seeking discovery from participants in foreign tribunals). Anahara's Japanese attorney asserts that "Google is not, and will not be, a party or participant to the anticipated Japanese civil lawsuits," and that the documents are held in the United States and are outside of the reach of Japanese courts' jurisdiction. Kawamura Decl. (dkt. 1-2) ¶ 13. This factor therefore weighs in favor of the application.
D. The Second Discretionary Factor
The second discretionary factor "focuses on whether the foreign tribunal is willing to consider the information sought." In re Varian Med. Sys., 2016 WL 1161568, at *4. Where there is no evidence suggesting that foreign courts would be unreceptive to the requested discovery, the second discretionary factor weighs in favor of the application. See In re Med. Corp. H&S, No. 19-mc-80107-SVK, 2019 WL 2299953, at *3 (N.D. Cal. May 30, 2019) (holding that the second factor weighs in favor of an application when there is an absence of evidence that a foreign tribunal is unreceptive to this type of discovery, or the information sought). Anahara's Japanese attorney states that Japanese courts are receptive to this type of discovery obtained through the United States judicial system. See Kawamura Decl. ¶ 15. There is no evidence in the record to the contrary. The second factor therefore weighs in favor of the application.
E. The Third Discretionary Factor
The third factor considers whether the application "conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States." Intel, 542 U.S. at 265. Where there is a "perception that an applicant has side-stepped less-than-favorable discovery rules by resorting immediately to § 1782," this factor may weigh against the application. In re Cathode Ray Tube (CRT) Antitrust litig., No. C07-5944-SC, 2013 WL 183944, at *3 (N.D. Cal. Jan. 17, 2013). Absence of evidence of attempted circumvention weighs in favor of an application. See, e.g., In re Google, Inc., No. 14-mc-80333-DMR, 2014 WL 7146994, at *2 (N.D. Cal. Dec. 15, 2014); In re Eurasian Nat. Res. Corp. ltd., No. 18-mc-80041-LB, 2018 WL 1557167, at *3 (N.D. Cal. Mar. 30, 2018); In re Honda, No. 21-mc-80167-VKD, 2021 WL 3173210, at *4 (N.D. Cal. July 27, 2021). There is no indication that Anahara is attempting to evade any discovery rule or other policy of Japan or the United States. The Court finds that the third factor weighs in favor of granting the application.
The Court notes that Anahara asserts that at least some aspects of the review at issue are false and defamatory, suggesting that the anonymous speech at issue likely would not be protected by the First Amendment if made in the United States. See generally Milkovich v. lorain Journal Co., 497 U.S. 1, 22 (1990) (discussing the balance between the First Amendment and "the important social values which underlie the law of defamation" (cleaned up)). The Court therefore does not reach the question of whether "other policies of. . . the United States" underlying the First Amendment could warrant denying a request under § 1782 intended to unmask an anonymous speaker even where the speaker, as a "foreign citizen[] outside U.S. territory," might not be directly protected by the Constitution. See Agency for Int'l Dev. v. All. for Open Soc 'y Int 7, Inc., 140 S.Ct. 2082, 2086 (2020). This order is without prejudice to any such argument that might be raised in a motion to quash.
F. The Fourth Discretionary Factor
The fourth factor considers whether the requested discovery is "unduly intrusive or burdensome." Intel, 542 U.S. at 265. Requests are unduly burdensome when they are "not narrowly tailored, request confidential information and appear to be a "broad fishing expedition for irrelevant information." In re Qualcomm Inc., 162 F.Supp.3d 1029, 1043 (N.D. Cal. 2016). The "proper scope" of requests under section 1782 is "generally determined by the Federal Rules of Civil Procedure." In re Varian Med. Sys., 2016 WL 1161568, at *5. Parties "may obtain discovery that is relevant to any parties claim or defense," Fed.R.Civ.P. 26(b)(1), but "unduly intrusive or burdensome requests may be rejected or trimmed." Intel, 542 U.S. at 246.
Some courts have considered in the First Amendment and the potential chilling effect that granting the request would have on anonymous speech in the context of this factor. See, e.g., Tokyo Univ. of Soc. Welfare v. Twitter, Inc., No. 21-mc-80102-DMR, 2021 WL 4124216, at *3 (N.D. Cal. Sept. 9, 2021). As noted above, Anahara's assertions of falsehoods in the review tend to ameliorate such concerns, and the Court declines to resolve this issue sua sponte, without prejudice to addressing it on a motion to quash.
Anahara's proposed subpoena requests all documents showing names, addresses, "recovery, authentication, or ALL other" telephone numbers and email addresses, names and addresses for all payment methods registered to the accounts, as well as access logs and login history "for the three-month period immediately preceding March 4, 2022 and until the date that you respond to this request." App. (dkt. 1) Ex. B at 1-2. Anahara requests this same information for any other accounts affiliated with the reviewers' Google accounts, such as Google Ads accounts. Id. The proposed subpoena appropriately does not seek the content of any communications associated with the accounts at issue, nor does it request the users' credit card numbers, expiration dates, or validation codes. Id.
As this subpoena requests personally identifying information from an anonymous speaker, it intrudes upon the privacy interests of the Google account holder. At least some degree of such intrusion is warranted, as discussed above. Nevertheless, Anahara's request for all potentially identifying information is overly broad. The Court finds that authorizing Anahara to seek information sufficient to identify the reviewer is appropriate, but Anahara has not shown sufficient need for an all-encompassing trove of the account-holder's private information.
The requests for "access logs" and login history from the accounts, spanning three months before the application to the date of Google's response to the subpoena, also may not be adequately justified. See In re Hayashi Surgical Clinic, No. 19-MC-80071-VKD, 2019 WL 1560461, at *4 (N.D. Cal. Apr. 10, 2019) (finding that without justification, access logs were unnecessary to identify the users behind Google reviews). Anahara makes a sufficient case for the utility of acquiring IP addresses associated with the Google account, especially if the personally identifiable information provided for the account may be falsified, and for determining the times at which those IP addresses were used to access the account. See Kawamura Decl. ¶¶ 19-20. It is not clear, however, whether Google's "access logs" would provide additional information beyond IP addresses and times at which they were used to access the account-which appear to be the only information Anahara is concerned with obtaining from the access logs. See App. Ex. B.
Anahara may serve the subpoena on Google, subject to the following modifications: (1) Anahara may request only documents sufficient to identify all names and contact information for the Google user at issue, rather than all documents containing duplicative instances of that information; (2) Anahara may request only documents sufficient to identify each IP address used to access the account and the dates and times at which each was used during the period at issue, rather than a request for "access logs" that could be construed as requiring further information for which no specific need has been shown.
IV. CONCLUSION
As this application meets the statutory criteria for an order authorizing service of the proposed subpoena and the discretionary factors favor authorization of service, the Court authorizes service of the proposed subpoena on Google, subject to the above modifications.
This order is without prejudice to any argument that might be raised in a motion to quash or modify the subpoena by Google following service or by the Google account user(s) whose identifying information is sought, and the Court orders Anahara to comply with the following requirements to ensure all interested persons have an opportunity to contest the subpoena if they wish:
1. At the time of service of the subpoena, Anahara must also serve a copy of this order on Google.
2. No later than ten days after service of the subpoena and this order, Google shall notify the account user that their identifying information is sought by Anahara and shall serve a copy of this order on the account user.
3. Google and/or the account user whose identifying information is sought may, no later than twenty-one days after Google provides notice to the user, file a motion in this Court contesting the subpoena (including a motion to quash or modify the subpoena).
4. If any party contests the subpoena, Google shall preserve, but not disclose, the information sought by the subpoena pending resolution of that contest.
5. Any information Anahara obtains pursuant to the subpoena may be used only for purposes of the anticipated action in Japan, and Anahara may not release such information or use it for any other purpose, absent a Court order authorizing such release or use.
IT IS SO ORDERED.