Filing
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ORDER GRANTING-IN-PART EX PARTE APPLICATION FOR SUBPOENA OF TOPIX IN AID OF FOREIGN DEFAMATION SUIT by Judge Paul S. Grewal granting-in-part 1 (psglc2, COURT STAFF) (Filed on 11/8/2013)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
For the Northern District of California
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SAN JOSE DIVISION
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IN RE EX PARTE APPLICATION OF
ONTARIO PRINCIPALS’ COUNCIL,
GORDANA STEFULIC, VIVIAN MAVROU,
VARLA ABRAMS,
Applicants.
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Case No.: 5:13-mc-80237-LHK-PSG
ORDER GRANTING-IN-PART
EX PARTE APPLICATION FOR
SUBPOENA OF TOPIX IN AID OF
FOREIGN DEFAMATION SUIT
(Re: Docket No. 1)
Ontario Principals’ Council, Gordana Stefulic, Vivian Mavrou, and Varla Abrams
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(collectively, “Applicants”) seek discovery for use in foreign proceedings pursuant to
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28 U.S.C. § 1782(a). 1 Applicants request a court order authorizing a subpoena to Topix, LLC
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(“Topix”) – a resident of this district – for documents to support a Canadian defamation suit.
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Applicants seek documents that identify the subscriber and/or IP address login information for
Topix user(s) responsible for online defamatory postings directed towards Applicants.
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I. LEGAL STANDARDS
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“A district court may grant an application pursuant to 28 U.S.C. § 1782 where
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(1) the person from whom the discovery is sought resides or is found in the district of the district
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See Docket No. 1.
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Case No.: 5:13-mc-80237-LHK-PSG
ORDER GRANTING-IN-PART EX PARTE APPLICATION FOR SUBPOENA OF TOPIX IN
AID OF FOREIGN DEFAMATION SUIT
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court to which the application is made, (2) the discovery is for use in a proceeding before a foreign
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tribunal, and (3) the application is made by a foreign or internal tribunal or any interested person.” 2
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However, simply because a court has the authority under Section 1782 to grant an application does
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not mean that it is required to do so. 3 The Supreme Court has identified several factors that a court
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should weigh before ruling on a Section 1782 request:
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(1) whether the material sought is within the foreign tribunal’s jurisdictional reach
and thus accessible absent Section 1782 aid; (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 jurisdictional
assistance; (3) whether the Section 1782 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 subpoena contains unduly intrusive or
burdensome requests. 4
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It is common for parties to request and obtain orders authorizing discovery ex parte. 5 Such
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“ex parte applications are typically justified by the fact that the parties will be given adequate
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notice of any discovery taken pursuant to the request and will then have the opportunity to move to
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quash the discovery or to participate in it.” 6
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United States District Court
For the Northern District of California
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II. DISCUSSION
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A.
The court has reviewed Applicants’ papers and agrees that the statutory requirements have
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Authority to Issue Subpoena
been met. First, Topix is located in Palo Alto, here in the Northern District. Second, the discovery
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In re Republic of Ecuador, Case No. 3:10-mc-80225-CRB-EMC, 2010 WL 3702427, at *2
(N.D. Cal. Sep. 15, 2010); see 28 U.S.C. § 1782(a).
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See Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264 (2004) (emphasizing a
“district court is not required to grant a § 1782(a) discovery application simply because it has the
authority” to do so); United Kingdom v. United States, 238 F.3d 1312, 1319 (11th Cir. 2001)
(a “district court's compliance with a § 1782 request is not mandatory”).
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In re Republic of Ecuador, 2010 WL 3702427, at *2 (quoting Intel, 542 U.S. at 264-65).
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See id. (quoting In re Letter of Request from Supreme Court of Hong Kong, 138 F.R.D. 27, 32 n.6
(S.D.N.Y.1991) (noting “it is common for ‘the process of presenting the request to a court and to
obtain the order authorizing discovery’ to be conducted” ex parte)).
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Id. (citations omitted).
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Case No.: 5:13-mc-80237-LHK-PSG
ORDER GRANTING-IN-PART EX PARTE APPLICATION FOR SUBPOENA OF TOPIX IN
AID OF FOREIGN DEFAMATION SUIT
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sought is for use in a Canadian defamation suit. Finally, Applicants constitute interested persons
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because they are a party to the foreign litigation.
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B.
Discretionary Factors
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1.
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The first Intel factor considers whether the material sought is within the foreign tribunal’s
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Jurisdictional Reach of Foreign Tribunal
jurisdictional reach.
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The Supreme Court explained that,
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[w]hen the person from whom discovery is sought is a participant in the foreign
proceeding . . . , 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. A foreign tribunal has jurisdiction over those appearing before it, and can
itself order them to produce evidence. 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. 7
United States District Court
For the Northern District of California
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In the instant case, Topix is not a party to the Canadian litigation. Topix is a Delaware corporation
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based here in California. The requested information does not appear within the immediate reach of
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a Canadian tribunal.
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2.
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Nature and Receptivity of Foreign Tribunal
Under the second Intel factor, district courts are encouraged to “take into account the nature
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of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the
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foreign government or the court or agency abroad to U.S. federal-court judicial assistance.” 8 In the
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foreign civil suit, Applicants intend to initiate litigation in Canada related to anonymous
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defamatory comments published about Applicants on Internet websites, such as Topix. 9
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Applicants claim they “have been the targets of explicit online postings and comments accusing
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Intel, 542 U.S. at 264.
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Id.
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See Docket No. 1 at 5.
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Case No.: 5:13-mc-80237-LHK-PSG
ORDER GRANTING-IN-PART EX PARTE APPLICATION FOR SUBPOENA OF TOPIX IN
AID OF FOREIGN DEFAMATION SUIT
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each of them of various incidents of egregious professional misconduct.” 10 Further, Applicants
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believe “the same individual or group of individuals is/are responsible for the defamatory online
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postings.” 11 However, because Topix users employ pseudonyms, Applicants need access to the
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requested information from Topix to identify their tortfeasors. 12 The information sought by
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Applicants is relevant to the Canadian litigation and would assist a foreign tribunal assessing
applicant’s claims.
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3.
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Although Section 1782 does not require the documents sought to be discoverable in the
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United States District Court
For the Northern District of California
Attempt to Circumvent Foreign Proof-Gathering Restrictions and Policies
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foreign courts, a district court may consider whether an applicant seeks in bad faith “to circumvent
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foreign proof-gathering restrictions or other policies of a foreign country or the United States.” 13
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Nothing in Applicants’ request facially attempts to circumvent foreign proof-gathering restrictions.
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4.
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Undue Intrusion or Burden
Applicants seek subscriber data and IP address login information from a discrete set of
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Topix users. More specifically, Applicants request “any and all documents” disclosing: (1) the first
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and last name of the user, (2) email addresses, (3) telephone numbers, (4) country and postal code
information, (5) instant messenger screen names, (6) websites related to the user, (7) the current
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Docket No. 1 at 3.
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Id.
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Section 1782 applications may issue even where foreign proceedings has not yet been initiated.
See Intel, 542 U.S. at 247 (explaining “the ‘proceeding’ for which discovery is sought under §
1782(a) must be in reasonable contemplation, but need not be ‘pending’ or ‘imminent’”); In re
Letter of Request from Crown Prosecution Serv. of United Kingdom, 870 F.2d 686, 691 (D.D.C.
1989) (explaining the proceeding need only be “within reasonable contemplation” but “need not be
pending”).
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Case No.: 5:13-mc-80237-LHK-PSG
ORDER GRANTING-IN-PART EX PARTE APPLICATION FOR SUBPOENA OF TOPIX IN
AID OF FOREIGN DEFAMATION SUIT
See Intel, 542 U.S. at 260-63, 265.
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