ORDER GRANTING APPLICATION TO SERVE REQUEST FOR DISCOVERY FOR USE IN A FOREIGN PROCEEDING

Re: ECF No. 1

LAUREL BEELER, Magistrate Judge.

INTRODUCTION

Ming Yang is the plaintiff in an action pending before the Eastern Caribbean Supreme Court of the British Virgin Islands ("BVI").1 In or around 1997, Ming2 and his brother Cheng-Ta "Eric" Yang founded a company called Columbia Consulting Group, now known as Tutor Group Holding Inc., which holds controlling interests in underlying companies that operate a language-tutoring business.3 In or around 2012, Ming, Eric, and another close relative, Lei "James" Yang, created a BVI company called MEJ Investment Ltd. and transferred their ownership shares in Tutor Group to MEJ.4

MEJ historically operated as a quasi-partnership between Ming, Eric, and James.5 According to Ming, it was always understood that he would be entitled to participate in the MEJ's management and that Eric or James would consult him on any significant or important decisions made in relation to MEJ.6

Ming alleges that since approximately May or June 2017, Eric and James "have conducted the affairs of MEJ oppressively and/or in a manner that is unfairly discriminatory towards [Ming]."7 Among other things, Eric and James allegedly had MEJ remove Ming as a director, had MEJ sell Tutor Group shares without consulting Ming or sharing any proceeds from the sale with Ming, approved a Chinese insurance company's acquiring a substantial interest in Tutor Group without Ming's consent or knowledge, and terminated Ming from his employment at Tutor Group and from all his roles in Tutor Group's language-tutoring business.8

In July 2019, Ming filed a lawsuit in the BVI against Eric, James, Eric's wife Chi-Weh "Celia" Sah (another MEJ shareholder), and MEJ, seeking a buyout of his interests in MEJ and other relief.9

Ming now files an application under 28 U.S.C. § 1782 seeking leave to issue a subpoena to The Goldman Sachs Group, Inc. for discovery in connection with his BVI lawsuit. Ming asserts that Goldman Sachs has been a shareholder (through various wholly-owned subsidiaries) of both preferred and common shares of Tutor Group since Tutor Group's Series C funding in 2015 and that, as a shareholder, it has informational and voting rights concerning MEJ's sale or dissipation of Tutor Group shares, Tutor Group's termination of Ming, and the Chinese insurance company's acquisition of an interest in Tutor Group.10

The court grants Yang's application to serve its proposed subpoena on Goldman Sachs.

ANALYSIS

1. Governing Law

Ming makes his application for discovery under 28 U.S.C. § 1782(a), which provides, in relevant part:

A litigant in a foreign action qualifies as an "interested person" under Section 1782. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 256 (2004). 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. Id. at 258-59. 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 moving 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 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 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).

2. Application

2.1 Statutory Requirements

Ming's application satisfies the three minimum statutory requirements of Section 1782. First, Ming seeks discovery from Goldman Sachs, which he says can be found in this district.11 Second, the requested discovery is for use in a lawsuit currently pending in the BVI. Third, Yang qualifies as an "interested person" because he is a party to the BVI lawsuit.

2.2 Discretionary Intel Factors

The discretionary Intel factors also support granting the application.

2.2.1 Participant in a foreign proceeding

The first Intel factor asks whether the "person from whom discovery 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.

Goldman Sachs is not a participant in the BVI Action. This factor weighs in favor of granting the application.

2.2.2 Nature of the tribunal and receptivity to U.S. federal-court judicial assistance

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.

There is no evidence suggesting that BVI courts would be unreceptive to the discovery Ming seeks. Ming's BVI counsel submitted a declaration that the BVI Evidence Act 2006 allows the admission of such discovery and that "[t]he BVI Court has not made any order, declaration or statement to the effect that it would not accept the formal introduction of the requested documents and testimony by offer of proof."12 Case law also suggests that BVI courts are generally receptive to discovery taken in the United States pursuant to Section 1782. See, e.g., In re Ambercroft Trading Ltd., No. 18-mc-80074-KAW, 2018 WL 2867744, at *4 (N.D. Cal. June 11, 2018) (collecting cases finding that BVI courts would be receptive to judicial assistance by U.S. federal courts and allowing Section 1782 discovery). This factor weighs in favor of granting the application.

2.2.3 Attempt to circumvent foreign proof-gathering restrictions or policies

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.

There is no evidence suggesting that the instant application is an attempt to circumvent foreign proof-gathering restrictions or policies of the British Virgin Islands. Ming's BVI counsel submitted a declaration that "[t]he application for and use of material obtained by such discovery are not contrary to BVI public policy and such material would be allowed into evidence in the BVI proceedings once it is shown that they satisfy the primary test of relevance to the matters in issue."13 The court has no reason to think that this application is an attempt to circumvent foreign proof-gathering restrictions in the BVI. Cf. In re Ambercroft, 2018 WL 2867744, at *5. This factor weighs in favor of granting the application.

2.2.4 Undue intrusion or burden

The fourth Intel factor is whether the request is "unduly intrusive or burdensome." Intel, 542 U.S. at 265.

Ming seeks to obtain documents and communications that appear to be directly relevant to his claims in the BVI action. His requests appear to be limited and circumscribed and do not appear to call for documents unrelated to MEJ or Tutor Group.14 Additionally, if Goldman Sachs seeks to challenge the relevance, breadth, or burden of Ming's requests, it may do so. Cf. In re Ambercroft, 2018 WL 2867744, at *5. This factor weighs in favor of granting the application.

CONCLUSION

For the foregoing reasons, the court grants Ming Yang's application to serve his proposed subpoena on Goldman Sachs.

If Goldman Sachs wants to contest the subpoena, it must notify Ming that it wishes to do so before the return date of the subpoena. 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, which is attached to this order.

Ming must serve Goldman Sachs with a copy of this order and a copy of the standing order when it serves its subpoena.

IT IS SO ORDERED.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

STANDING ORDER FOR UNITED STATES MAGISTRATE JUDGE LAUREL BEELER (Effective October 17, 2018)

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 >http://www.cand.uscourts.gov (click "Rules" or "ECF-PACER"). A failure to comply with any of the rules may be a ground for monetary sanctions, dismissal, entry of judgment, or other appropriate sanctions.

I. CALENDAR DATES AND SCHEDULING

Motions are heard each Thursday: civil motions at 9:30 a.m. and criminal motions at 10:30 a.m. Case-management conferences are every Thursday: criminal cases at 10:30 a.m. and civil cases at 11:00 a.m. Parties must notice motions under the local rules and need not reserve a hearing date in advance if the date is available on the court's calendar (click "Calendars" at http://www.cand.uscourts.gov). Depending on its schedule, the court may reset or vacate hearings. Please call courtroom deputy Elaine Kabiling at (415) 522-3140 with scheduling questions.

II. CHAMBERS COPIES

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.

III. CIVIL DISCOVERY

1. Evidence Preservation. After a party has notice of this order, it must take the steps needed to preserve information relevant to the issues in this action, including suspending any document-destruction programs (including destruction programs for electronically maintained material).

2. Production of Documents In Original Form. When searching for material under Federal Rule of Civil Procedure 26(a)(1) or after a Federal Rule of Civil Procedure 34(a) request, parties (a) must search all locations — electronic and otherwise — where responsive materials might plausibly exist, and (b) to the extent feasible, produce or make available for copying and/or inspection the materials in their original form, sequence, and organization (including, for example, file folders).

3. Privilege Logs. If a party withholds material as privileged, see Fed. R. Civ. P. 26(b)(5) and 45(d)(2)(A), it must produce a privilege log that is sufficiently detailed for the opposing party to assess whether the assertion of privilege is justified. The log must be produced as quickly as possible but no later than fourteen days after the party's disclosures or discovery responses are due unless the parties stipulate to, or the court sets, another date. Unless the parties agree to a different logging method, privilege logs must contain the following: (a) the title and description of the document, the number of pages, and the Bates-number range; (b) the subject matter or general nature of the document (without disclosing its contents); (c) the identity and position of its author; (d) the date it was communicated (or prepared, if that is the more relevant date); (e) the identity and position of all addressees and recipients of the communication; (f) the document's present location; (g) the specific basis for the assertion that the document is privileged or protected (including a brief summary of any supporting facts); and (h) the steps taken to ensure the confidentiality of the communication, including an affirmation that no unauthorized persons received the communication.

4. Expedited Procedures for Discovery Disputes. The parties may not file formal discovery motions. Instead, and as required by the federal rules and local rules, the parties must meet and confer to try to resolve their disagreements. See Fed. R. Civ. P. 37(a)(1); Civil L. R. 37-1. Counsel may confer initially by email, letter, or telephone to try to narrow their disputes. After trying those means, lead trial counsel then must meet and confer in person to try to resolve the dispute. (If counsel are located outside of the Bay Area and cannot confer in person, lead counsel may meet and confer by telephone.) Either party may demand such a meeting with ten days' notice. If the parties cannot agree on the location, the location for meetings will alternate. The plaintiff's counsel will select the first location, defense counsel will select the second location, and so forth. If the parties do not resolve their disagreements through this procedure, lead counsel must file a joint letter brief no later than five days after lead counsels' in-person meet-and-confer. The letter brief must be filed under the Civil Events category of "Motions and Related Filings > Motions — General > Discovery Letter Brief." It may be no more than five pages (12-point font or greater, margins of no less than one inch) without leave of the court. Lead counsel for both parties must sign the letter and attest that they met and conferred in person. Each issue must be set forth in a separate section that includes (1) a statement of the unresolved issue, (2) a summary of each parties' position (with citations to supporting facts and legal authority), and (3) each party's final proposed compromise. (This process allows a side-by-side, stand-alone analysis of each disputed issue.) If the disagreement concerns specific discovery that a party has propounded, such as interrogatories, requests for production of documents, or answers or objections to such discovery, the parties must reproduce the question/request and the response in full either in the letter or, if the page limits in the letter are not sufficient, in a single joint exhibit. The court then will review the letter brief and determine whether formal briefing or future proceedings are necessary. In emergencies during discovery events such as depositions, the parties may contact the court through the court's courtroom deputy pursuant to Civil Local Rule 37-1(b) but first must send a short joint email describing the nature of the dispute to lbpo@cand.uscourts.gov.

IV. CONSENT CASES

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.

V. SUMMARY-JUDGMENT MOTIONS

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.

IT IS SO ORDERED.