MARIA-ELENA JAMES, Magistrate Judge.
Before the Court is Petitioner Russell Knaggs's ("Petitioner") Motion under 28 U.S.C. § 1782 for an order directing Respondent Yahoo! Inc. ("Yahoo") to submit to a deposition pursuant to Federal Rule of Civil Procedure 30(b)(6) and to produce documents for use in a foreign proceeding. Mot., Dkt. No. 13; see also Initial 28 U.S.C. § 1782 Appl. ("Appl."), Dkt. No. 1. Having considered the parties' papers, the record in this matter, and the relevant legal authority, the Court now issues the following Order.
Petitioner is a British national who is currently serving a 20 year prison sentence in England for conspiracy to import drugs into the United Kingdom ("UK"). Appl. at 2-3; Mot. at 4. At trial on the conspiracy charge, the Crown (i.e., the Prosecution) presented evidence obtained from Yahoo, which is based in Sunnyvale, California. Appl. at 2; Mot. at 4. This evidence allegedly showed Petitioner and his alleged co-conspirators communicating about and organizing their conspiracy through a single Yahoo email account by viewing and editing drafts of emails in the email account (as opposed to sending emails/messages to each other). Id. (both). Petitioner also alleges the evidence included emails that had been deleted from the email account. Mot. at 4.
Petitioner is in the process of appealing his criminal conviction, and one of the grounds for his appeal is his belief that the Yahoo-based evidence used against him was gathered by Yahoo through a method that violated or circumvented British law. Id.; Appl. at 1-2, 4, 16. Specifically, Petitioner contends the information provided to the Crown by Yahoo may have been the result of real-time monitoring and/or bulk data gathering by Yahoo. Mot. at 4. The UK Court has approved Petitioner's bid to pursue an appeal based on questions regarding the Yahoo-originated evidence. Appl. at 1-2; Mot. at 4. Petitioner now argues he needs "limited fact discovery to establish or disprove this basis for evidentiary suppression" by gaining information about the method Yahoo used to gather data to provide to law enforcement. Mot. at 4-5.
The evidence Petitioner alleges Yahoo collected unlawfully includes four "snapshots" of content from the email account used in the alleged conspiracy and email headers for emails "maintained in the account." Appl. at 2; May 22, 2014 Statement of Michele Lai
After informal attempts to gather information about the data-gathering process from Yahoo, on November 16, 2015, Petitioner filed his Application pursuant to 28 U.S.C. § 1782, asking this Court compel discovery from Yahoo. Appl. at 1-4. Yahoo had earlier provided Petitioner with a "custodian of records declaration," which Petitioner contends "did not respond to or address the most critical issues identified in [his] request." Id. at 3. Before filing his Application, Petitioner requested that Yahoo voluntarily agree to depositions, but Yahoo refused, offering instead to provide an additional declaration. Id. at 4. Petitioner originally sought to depose three knowledgeable individuals at Yahoo: Yahoo's Global Compliance Director, its Direct of Engineering, and its Back-End Mail Principal Engineer. Id. at 13; Mot. at 6. However, after filing his Application, Petitioner and Yahoo met and conferred, and Yahoo proposed providing the information sought via written interrogatories. Mot. at 6. Through a series of stipulations, the parties agreed to conduct discovery through interrogatories as well as various timing extensions. See Dkt. Nos. 5, 7, 9, 11.
On May 25, 2016, Petitioner filed his Motion to Compel, asking the Court to order Yahoo to produce one employee of the company's choosing (also labeled Yahoo's "person most qualified") for a half-day deposition focused on the subjects of the previous interrogatories, i.e. Yahoo data-gathering methods that are relevant to Petitioner's case. Mot. at 1. Petitioner also requests an Order requiring Yahoo to produce documents responsive to Interrogatory Request No. 14 and information listed in Petitioner's "expert `Wish List'" concerning Yahoo's data-gathering methods. Appl. at 5; Mot. at 1. He contends that a deposition is now "called for" because (1) Yahoo has offered "evolving explanations" over time about how it retains deleted information in user email accounts; (2) "in its recent written responses, Yahoo has insulated the sources of its information from scrutiny by the way it has fashioned its responses; and (3) Yahoo's explanations are not clear and need to be clarified." Mot. at 3.
Although Petitioner did not provide the Court with all the declarations, statements, and interrogatories obtained from Yahoo, he did include the May 22, 2014 and July 1, 2015 written statements of Michele Chan (formerly Lai), and the October 27, 2011 statement of Deputy Compliance Manager Emily Nick (Nick Stmt., Dkt. No. 1-1 at ECF pgs. 15-17). Petitioner contends these statements provide different and conflicting descriptions of the email deletion and removal process and the preservation and data-gathering process used to make the snapshots. Mot. at 5. Chan, for example, in her July 1, 2015 Statement, changed her explanation of how the data-collection works after having reviewed "company documentation" about the Yahoo email deletion process and the proprietary tools that assist in preservation and data-gathering for snapshots. Specifically, according to her May 22, 2014 statement:
2014 Lai Stmt. ¶¶ 4-5, 9. She also states Yahoo "does backup communications . . . [which] are only accessible for the purpose of recovering user account content, at the request of a user, and are not accessible to the proprietary tools Yahoo uses to gather communications data in response to legal process." Id. at 6 n.1. However, Chan's July 1, 2015 statement explains:
July 1, 2015 Statement of Michele Lai ("2015 Lai Stmt.") ¶ 5, Dkt. No. 1-1 at ECF pgs. 9-12.
Yahoo alleges the differences in Michele Lai's statements were the result of her clarifying her initial statement in her later statement. Opp'n at 11-12. Yahoo asserts that, "while accurate as a general matter, [Lai's 2014 Statement and Nick's Statement] did not expressly describe the preservation of auto-save drafts of emails that have been deleted from the user's mailbox view, but still remained on the Yahoo mail servers for a period of time," as such emails "would be [and were] captured in a snapshot." Yahoo's Resps. to Interrogs., Dkt. No. 13-1 at ECF pg. 31. Yahoo says its auto-save process is "automatic," and the email "purging process" "is initiated only when it is determined through Yahoo's automated proprietary processes that enough activity has occurred within the email account to reach the threshold for action." Id. at ECF pgs. 52-53.
Petitioner's computer hardware and software expert, Mark Abramson, who indicates he has expertise in computer and data forensics, cybercrime analysis, cyber terrorism prevention, and Internet intrusion detection, takes issue with Yahoo's version of events. May 25, 2016 Declaration of Mark Abramson ("May 25 Abramson Decl."), Dkt. No. 13-1 at ECF pgs. 65-67); June 30, 2016 Declaration of Mark Abramson ("June 30 Abramson Decl."), Dkt. No. 24-1 at ECF pg. 4; Abramson Expert Report ("Abramson Rpt."), Dkt. No. 24-1 at ECF pgs. 6-14. Abramson notes Yahoo "continuously changes its story" and the information it provides "does not make sense" and "is not a technical explanation of the associated events that led up to Yahoo providing the information to law enforcement." Abramson Rpt. at 4. With regard to Yahoo's "snapshot" and its process of "retriev[ing emails] from the servers because their auto-save function systematically preserved edits made over time," Abramson says the descriptions Yahoo gives of its auto-save feature are inconsistent, contradictory, and furthermore "do[] not align with [Abramson's] understanding of such programs." May 25 Abramson Decl. ¶¶ 4-7. Additionally, Abramson contends Yahoo's statements "do not in fact agree with common technical principles. The timing of e-mail data saved between 2 minutes and several seconds is not consistent." Abramson Rpt. at 8. He asserts that "[a] more plausible explanation for the e-mail information provided to law enforcement is that the e-mail account of Mr. Knagg's [sic] was under surveillance and through the immediate efforts of surveillance, Yahoo was able to capture the e-mail information and provide it to law enforcement." Id.
Yahoo, for its part, contends it has "quickly and voluntarily" explained, in its answers to the 21 interrogatories propounded by Petitioner, "(1) how it collected the evidence and (2) why the draft emails that users had deleted remained on Yahoo's servers for some period of time until finally purged from the servers, albeit not visible to users in their mailboxes," and that Petitioner only makes his latest Motion because he is "[u]nhappy with the truth—because Yahoo's answers do not support his argument on appeal[.]" Opp'n at 1. It further contends "Petitioner's proposed document requests and deposition are a baseless fishing expedition into aspects of Yahoo's email system that have nothing to do with the ordinary means by which Yahoo collected Petitioner's information." Id. at 2. Among other things, Yahoo reiterates its process of capturing the snapshots was not done in real time but rather through auto-save drafts that captured copies of messages at various points while the drafts were stored on the Yahoo mail server through its proprietary snapshot tool. Id. at 3-4. It also rejects Petitioner's argument that it collected this information as part of a surveillance program, calling this accusation "baseless." Id. at 4.
Finally, Yahoo submits another declaration by Michele Chan filed in support of Yahoo's Opposition ("Chan Decl.," Dkt. No. 15-2); the declaration responds to Abramson's opinion about the irregularities in the frequency of the auto-save feature (id. ¶¶ 2-3). Chan explains that "based on communications with others who have reviewed relevant documentation and have personal knowledge and expertise[,]" there are "several factors [that] could result in drafts being saved more or less frequently." Id. ¶¶ 1-2. She states "the interval of time between auto-save draft messages" can be (1) "a function of the client being used to access a mail account, e.g., web-based desktop access or IMAP/POP email client access"; (2) affected "if an account was being accessed from more than one client at a time" and "saved more frequently and thus at apparently irregular intervals"; (3) relatedly, "if a user was manually saving drafts, drafts may have been saved more frequently and thus at apparently irregular intervals"; and (4) as "auto-save drafts are only saved while a message is being composed[,] [i]f a user stopped composing and returned to the draft at a later time, the auto-saved drafts of that message would be at least as far apart in time as the break in message composition." Id. ¶ 3.
Petitioner requests an Order compelling: (1) a half-day 30(b)(6) deposition covering four topics and (2) the production of documents responsive to Interrogatory Request No. 14
May 25 Abramson Decl. ¶ 8; Mot. at 1-2.
Yahoo argues Petitioner's requests are cumulative, overbroad, and harassing, as he asks Yahoo, a third party—not a defendant—to produce confidential and highly sensitive information, including source code and design documents for Yahoo Mail. Opp'n at 1. It further points out that the "four topics" Petitioner seeks a 30(b)(6) deposition for actually purport to cover all 21 interrogatories previously issued to Yahoo. Jt. Ltr. at 2, Dkt. No. 25. Finally, Yahoo contends "a protective order would not be sufficient to guard against disclosure given the extraterritorial nature of the underlying proceedings[,]" as "Yahoo would be hamstrung to enforce a protective order entered in this Court against Knaggs (who is incarcerated in the U.K.) and his U.K. legal team and experts, who lie beyond the reach of this Court's jurisdiction." Opp'n at 8.
The parties were also ordered to meet and confer and provide a joint statement indicating their "compromise positions" as part of the Court's ordinary discovery process. Order, Dkt. No. 23. The parties timely responded. See Jt. Ltr. Petitioner indicates that his proposal at the meet and confer was for him to forego a 30(b)(6) deposition and for Yahoo to produce the documents identified by Petitioner's experts and requested by Petitioner. Id. at 1. Yahoo rejects Petitioner's proposal, stating it "has made significant concessions in the course of the parties' negotiations" and counteroffers to answer additional interrogatories, which Petitioner declined. Id. at 1, 3.
Petitioner objects to Michele Chan's declaration filed in support of Yahoo's Opposition (Dkt. No. 15-2), arguing "Ms. Chan's declaration is not based upon personal knowledge, and does not specify the basis for her information and belief. See Local Rule 7-5 (`Any statement made upon information or belief must specify the basis therefor')." Obj. at 3, Dkt. No. 24-2. Petitioner contends:
Id. at 2. Petitioner asserts the Court should only acknowledge Chan's declaration "as prime evidence of the reason why it should grant Petitioner's Motion" or strike the declaration. Id. at 3.
Given the technical information asserted in Chan's declaration, the Court agrees Chan does not provide enough foundational information that she has the requisite personal knowledge to be able to rely on her statements. See Harrington v. Daiso Japan, 2011 WL 2110764, at *3 (N.D. Cal. May 26, 2011) (sustaining objection to a declaration where the declarant "neither indicates that any statement he makes in this declaration is based on his personal knowledge nor offers facts by which personal knowledge could be established"). Consequently, the Court sustains Petitioner's objection and will not rely on Chan's Declaration for the matters asserted therein.
The purpose of 28 U.S.C. § 1782 is "to provide federal-court assistance in gathering evidence for use in foreign tribunals." Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 247 (2004). Section 1782(a) provides in part:
28 U.S.C. § 1782(a). Consequently, the statute establishes a three-part test when deciding whether to grant a § 1782 application: "(1) the discovery sought is from a person residing in the district court to which the application is made; (2) the discovery is for use in a proceeding before a foreign tribunal; and (3) the Petitioner is a foreign or international tribunal or an interested person." In re Ex Parte Apple Inc. (In re Ex Apple), 2012 WL 1570043, at *1 (N.D. Cal. May 2, 2012) (quotation omitted). But once it is determined that the three statutory requirements have been met, "a district court is free to grant discovery in its discretion" so long as compelling production of the information would not violate a legally applicable privilege. Schmitz v. Bernstein Liebhard & Lifshitz, LLP, 376 F.3d 79, 83-84 (2d Cir. 2004) (quotation omitted); 28 U.S.C. § 1782 ("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.").
However, "[a] district court is not required to grant the application" and "instead retains discretion to determine what discovery, if any, should be permitted." Cryolife, Inc. v. Tenaxis Med., Inc., 2009 WL 88348, at *1 (N.D. Cal. Jan. 13, 2009) (citing Intel, 542 U.S. at 264). The United States Supreme Court prescribed four factors (known as the "Intel factors") for district courts to consider in exercising their discretion:
In re Ex Apple, 2012 WL 1570043, at *1 (quoting Intel, 542 U.S. at 264-65). District courts must exercise their discretion with the "twin aims" of § 1782 in mind: (1) "providing efficient assistance to participants in international litigation" and (2) "encouraging foreign countries by example to provide similar assistance to our courts." Intel, 542 U.S. at 252 (quotation omitted).
There is no dispute that Petitioner successfully meets the statutory requirements of 28 U.S.C. § 1782's three-part test. First, "the discovery sought is from a person residing in the district court to which the application is made," as Petitioner seeks discovery from Yahoo, a U.S. company that is principally located in Sunnyvale, California, which is within this Court's jurisdiction. Second, "the discovery is for use in a proceeding before a foreign tribunal" as Petitioner seeks to use the discovery gained from Yahoo in his appeal of his criminal conviction in the UK. Third, Petitioner is an "interested person" because of his involvement in his UK appeal. Intel, 542 U.S. at 256 ("No doubt litigants are included among, and may be the most common example of, the `interested person[s]' who may invoke § 1782"). Consequently, this Court has the authority to compel discovery under § 1782.
The issue then is whether the Court should exercise its discretion to permit discovery, and if so, to what degree. Of the four Intel factors, the only factor Yahoo relies on to oppose Petitioner's discovery request is the fourth factor, i.e., whether the discovery is "unduly intrusive or burdensome." Opp'n at 6 ("[A] court may deny overly broad and unduly burdensome discovery requests even though the Section 1782 application meets the other statutory requirements and discretionary factors." (citing In re Ex Parte Appl. of Nokia Corp., 2013 WL 6073457, *3-4 (N.D. Cal. Nov. 8, 2013))). Yahoo argues Petitioner's deposition and document requests are unduly burdensome and should be denied because: "(1) the proposed document requests and 30(b)(6) deposition are unreasonably intrusive and overly broad; (2) the requested deposition and document requests are a fishing expedition into Yahoo's email system and compliance with government surveillance programs; and (3) Petitioner has failed to show that the discovery requests are likely to produce relevant, noncumulative information." Id. at 5-6.
The proper scope of discovery arising out of a § 1782 application is determined by the Federal Rules of Civil Procedure. In re Letters Rogatory from the Tokyo Dist. Prosecutor's Office, 16 F.3d 1016, 1019-20 & n.3 (9th Cir. 1994) ("In addition to the clear language of the statute, the legislative history makes clear that `if the court fails to prescribe the procedure, the appropriate provisions of the Federal Rules of Civil Procedure are to be followed, irrespective of whether the foreign or international proceeding or investigation is of a criminal, civil, administrative, or other nature.'" (citation omitted)); Medeiros v. Int'l Game Tech., 2016 WL 1611591, at *3 & n.2 (D. Nev. Apr. 22, 2016) (applying the Federal Rules of Civil Procedure to a § 1782 application, and noting "[t]he Federal Rules of Civil Procedure have been applied even when the underlying foreign proceeding is criminal in nature." (collecting cases)); accord Gov't of Ghana v. ProEnergy Servs., LLC, 677 F.3d 340, 343 (8th Cir. 2012) (holding that "[t]he manner in which discovery proceeds [under a § 1782 Application] will be determined by normal discovery rules." (citing Weber v. Finker, 554 F.3d 1379, 1384 (11th Cir. 2009) and Heraeus Kulzer, GmbH v. Biomet, Inc., 633 F.3d 591, 597 (7th Cir. 2011))). Following the December 1, 2015 Amendments to the Federal Rules, requests must be "proportional," "considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit." Fed. R. Civ. P. 26(b)(1). "[U]nduly intrusive or burdensome requests may be rejected or trimmed." Intel, 542 U.S.at 246
The Court agrees with Yahoo that Petitioner's requests are somewhat broad; however, the Court also agrees that Yahoo's seemingly conflicting responses up to this point create a situation where Petitioner cannot be certain he understands the process of information gathering he seeks to challenge. While Yahoo believes that Petitioner seeks information that is cumulative given its interrogatory responses, it would appear that the requested discovery would not necessarily be cumulative, but might instead provide clarity to Petitioner regarding Yahoo's data-gathering methods. Additionally, since the documents Petitioner requests are potentially the same ones that helped Chan "clarify" her previous statement and better understand the data-gathering process, it would appear that these documents could help Petitioner gain a better understanding of the system as well, and could help to prove or disprove one of the grounds of his appeal, as is the purpose of his discovery request. The Court also notes that Chan's responses up to this point do not provide the sort of personal knowledge or foundational information for the Court or Petitioner to be able to adequately assess her responses. Consequently, Petitioner's request for documents and a 30(b)(6) deposition is appropriate rather than ordering further interrogatory responses. See La. Pac. Corp. v. Money Mkt. 1 Institutional Inv. Dealer, 285 F.R.D. 481, 488 (N.D. Cal. 2012) ("While [a company] might prefer . . . interrogatories than to prepare a witness for a Rule 30(b)(6) deposition,. . . its preference does not provide the court with a basis for giving it the relief it seeks.").
That said, Petitioner has not shown how his expert's "wish list" of documents are tailored to his needs and appear much broader than necessary. Requests are "unduly intrusive and burdensome where they are not narrowly tailored, request confidential information[,] and appear to be a broad `fishing expedition' for irrelevant information." In re Ex Parte Appl. of Qualcomm Inc., ___ F. Supp. 3d ___, 2016 WL 641700, at *9 (N.D. Cal. Feb. 18, 2016); see In re Appl. of Gemeinshcaftspraxis Dr. Med. Schottdorf, 2006 WL 3844464, at *8 (S.D.N.Y. Dec. 29, 2006) (courts must look at whether the discovery requested is "sufficiently tailored to the litigation issues for which production is sought.").
The crux of Petitioner's § 1782 Application is aimed at obtaining information about how Yahoo collected and produced the evidence used at Petitioner's criminal trial and whether that collection was done through real-time monitoring and/or bulk data gathering. See Appl. at 1-2. Petitioner's primary problem with Yahoo's responses up until now seems to be that "Yahoo!'s explanations how its auto-save feature preserved deleted information in this case are not clear to Petitioner's experts and need to be further clarified." Mot. at 11. However, Petitioner's request for a 30(b)(6) deposition that involves all 21 interrogatory topics (albeit broadly corralled into four purported topics by Petitioner) and a document production responsive to Interrogatory No. 14 (i.e., "Please IDENTIFY ALL DOCUMENTS YOU used, referred or consulted in preparing the responses to these Interrogatories"), is overbroad. While Petitioner argues the documents called for in Interrogatory No. 13 are "unquestionably relevant," Petitioner has not sufficiently established why all 21 interrogatory subjects are relevant to his discovery needs. Consequently, having reviewed the Petitioner's interrogatories, the Court finds the following information is presently subject to discovery in this matter:
See Dkt. No. 13-1 at ECF pgs. 24-44. Yahoo must designate one or more witnesses to sit for a Rule 30(b)(6) deposition on the foregoing topics. It must also identify and produce any non-privileged documents Yahoo used or referred to in responding to the interrogatories identified above. Yahoo shall comply with the ordinary discovery procedures, including, if necessary: filing a privilege log and seeking a protective order for the disclosed data.
Finally, while Yahoo contends "a protective order would not be sufficient to guard against disclosure given the extraterritorial nature of the underlying proceedings[,]"this argument is insufficient to prevent the disclosure of the discovery sought. Moreover, it is an issue easily remedied. In similar circumstances, courts have directed the parties to "jointly seek a protective order in" both the United States and the country in which the main suit arose. Siemens AG v. W. Digital Corp., 2013 WL 5947973, at *6 (C.D. Cal. Nov. 4, 2013); see also In re Procter & Gamble Co., 334 F.Supp.2d 1112, 1117 (E.D. Wis. 2004) (suggesting various ways confidentiality could be maintained, such as if the parties agreed not to exchange discovery unless/until obtaining a ruling in the foreign court that the information would be kept confidential and making the contract enforceable in the United States). Accordingly, Yahoo shall assess the information to be produced and shall then meet and confer with Petitioner concerning the nature and purported confidentiality of those documents. The parties shall then assess in what form and with what protections those documents should be produced (e.g., attorney's eyes only, etc.). If necessary, Yahoo may seek a protective order or related protections from this Court; however, that is not an invitation to delay production or the deposition.
Based on the analysis above, the Court
Consequently the Court
