LAUREL BEELER, Magistrate Judge.
On January 16, 2019, the Office of International Judicial Assistance at the United States Department of Justice received a Letter Rogatory from the National Court in Civil Matters in Argentine, Republic of Argentina ("the Argentine Court").
The information will be used in a proceeding in the Argentine Court.
On March 21, 2019, Assistant United States Attorney ("AUSA") Gioconda Molinari emailed Jacqueline Kort, counsel for Facebook, asking if Facebook would voluntarily provide the requested information.
On July 3, 2019, the United States filed an ex parte application to appoint AUSA Giaconda Molinari as Commissioner in order to subpoena Facebook for the user information sought by the Argentine Court pursuant to 28 U.S.C. § 1782(a).
The United States makes its application for discovery under 28 U.S.C. § 1782(a), which provides in relevant part:
28 U.S.C. § 1782(a). In order to apply for discovery pursuant to Section 1782, a formal proceeding in the foreign jurisdiction need not be currently pending, or even imminent. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 258-59 (2004). Instead, all that is necessary is that a "dispositive ruling" by the foreign adjudicative body is "within reasonable contemplation." Id. at 259 (holding that discovery was proper under Section 1782 even though the applicant's complaint against the opposing party was only in the investigative stage). An ex parte application is an acceptable method for seeking discovery pursuant to Section 1782. See In re Letters Rogatory from Tokyo Dist., 539 F.2d 1216, 1219 (9th Cir. 1976) (holding that the subpoenaed parties may raise objections and exercise their due process rights by bringing motions to quash the subpoenas).
A district court has wide discretion to grant discovery under Section 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 the 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 Section 1782: (1) providing efficient assistance to participants in international litigation and (2) 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). There is no requirement that the party seeking discovery establish that the information sought would be discoverable under the governing law in the foreign proceeding or that the United States law would allow discovery in an analogous domestic proceeding. See Intel, 542 U.S. at 247, 261-63.
When considering an application for discovery pursuant to Section 1782, the court considers first whether it has the statutory authority to grant the request and then whether it should exercise its discretion to do so. Lazaridis v. Int'l Centre for Missing and Exploited Children, Inc., 760 F.Supp.2d 109, 112 (D.D.C. 2011) (citations omitted).
The first issue is whether the government's application meets the three minimum statutory requirements of Section 1782. The court holds that it does.
First, Facebook is "found" in this District within the meaning of Section 1782 because its headquarters is located in Menlo Park, California.
The first Intel factor asks whether the "person from whom discovery is sought is a participant in the foreign proceeding." Intel, 542 U.S. at 264. If the person is a participant, "the need for § 1782(a) aid generally is not as apparent as it ordinarily is when evidence is sought from a nonparticipant in the matter arising abroad" because "[a] foreign tribunal has jurisdiction over those appearing before it, and can itself order them to produce evidence." Id. "In contrast, nonparticipants 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." Id.
Facebook is not a party to the foreign proceedings handled by the Argentine Court.
The second Intel factor requires the court to "take into account 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." Intel, 542 U.S. at 264.
The Argentine court requested the information, so it is receptive to this court's assistance.
The third Intel factor considers whether the request "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 264-65. As the Letter Rogatory was filed by a foreign tribunal, this factor weighs in favor of granting the application.
The fourth Intel factor is whether the request is "unduly intrusive or burdensome." Intel, 542 U.S. at 265. "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., 162 F.Supp.3d 1029, 1043 (N.D. Cal. 2016). The proposed subpoenas do not appear on their face to be unduly intrusive or burdensome. The topics appear relevant to the foreign proceedings before the Argentine court, and Facebook said it could respond to the request if it were served a subpoena.
The court grants the application and appoints AUSA Gioconda Molinari as Commissioner and authorizes her to subpoena the requested information from Facebook. The United States must serve Facebook with a copy of this order and a copy of the court's standing order, which is attached to this order, when it serves its subpoenas. If Facebook wants to contest the subpoenas, it must notify the United States that it wishes to do so before the return date of the subpoenas. Then, in lieu of a formal motion to quash, the parties must engage in the meet-and-confer and joint-letter-brief process set out in the court's standing order.
The testimony in this matter may be taken before any certified court reporter authorized to take testimony and administer oaths, and such court reporters are authorized to take testimony in this matter.
Parties must comply with the procedures in the Federal Rules of Civil and Criminal Procedure, the local rules, the general orders, this standing order, and the Northern District's standing order for civil cases titled "Contents of Joint Case Management Statement." These rules and a summary of electronic-filing requirements (including the procedures for emailing proposed orders to chambers) are available at
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Under Civil Local Rule 5-1(b), parties must lodge a paper "Chambers" copy of any filing unless another format makes more sense (such as for spreadsheets, pictures, or exhibits that are better lodged electronically). Paper copies must be printed on both sides and three-hole punched, and they must be the electronically filed copies with the PACER/ECF-generated header (with the case number, docket number, date, and ECF page number). Exhibits must be tabbed. Parties do not need to submit copies of certificates of service, certificates of interested entities or persons, consents or declinations to the court's jurisdiction, stipulations that do not require a court order (see Civil Local Rule 6-1), or notices of appearance or substitution of counsel. Please read Civil Local Rule 79-5 regarding the requirements for filing documents under seal and providing copies.
1. In cases that are assigned to Judge Beeler for all purposes, the parties must file their written consent or declination of consent to the assignment of a United States Magistrate Judge for all purposes as soon as possible. If a party files a dispositive motion (such as a motion to dismiss or a motion for remand), the moving party must file the consent or declination simultaneously with the motion, and the party opposing the motion must file the consent or declination simultaneously with the opposition.
2. The first joint case-management conference statement in a case must contain all of the information in the Northern District's standing order titled "Contents of Joint Case Management Statement." Subsequent statements for further case-management conferences must not repeat information contained in an earlier statement and instead must report only progress or changes since the last case-management conference and any new recommendations for case management.
The parties may not file separate statements of undisputed facts. See Civil L. R. 56-2. Joint statements of undisputed facts are not required but are helpful. Any joint statement must include — for each undisputed fact — citations to admissible evidence. A joint statement generally must be filed with the opening brief, and the briefs should cite to that statement. A reasonable process for drafting a joint statement is as follows: (1) two weeks before the filing date, the moving party proposes its undisputed facts, and (2) one week later, the responding party replies and the parties meet and confer about any disagreements. For oppositions, a responding party may propose additional undisputed facts to the moving party within seven days after the motion is filed and ask for a response within two business days.
