Aoki, No. 5:2022mc80249 - Document 6 (N.D. Cal. 2022)
Court Description: ORDER GRANTING 1 EX PARTE MOTION TO AUTHORIZE FOREIGN DISCOVERY. Signed by Judge Beth Labson Freeman on 9/29/2022. (blflc2, COURT STAFF) (Filed on 9/29/2022)
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Aoki Doc. 6 Case 5:22-mc-80249-BLF Document 6 Filed 09/29/22 Page 1 of 6 1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 AOKI, Case No. 22-mc-80249-BLF Plaintiff, 8 10 , Defendant. 11 United States District Court Northern District of California ORDER GRANTING EX PARTE MOTION TO AUTHORIZE FOREIGN DISCOVERY v. 9 [Re: ECF No. 1] 12 On September 28, 2022, Applicant Yuki Aoki (“Aoki”) filed an ex parte application 13 14 pursuant to 28 U.S.C. § 1782 (“Section 1782”) for an order granting leave to obtain discovery 15 from Respondent Google LLC (“Google”) in connection with a potential legal action in Japan. 16 ECF No. 1 (“App.”). For the reasons set forth below, the Court GRANTS Aoki’s application. 17 I. BACKGROUND 18 Aoki is a licensed medical doctor and sole proprietor doing business as Kagurazaka 19 Gastroenterology and Endoscopy Clinic (“Clinic”), which is located in in Tokyo, Japan. ECF No. 20 1-1 (“Aoki Decl.”) ¶¶ 1-3. The Clinic has a Google MyBusiness account, through which it can 21 edit the profile that appears on the Google search engine and Google Maps. Id. ¶ 9. Aoki asserts 22 that many patients find the Clinic using Google. Id. ¶ 8. 23 An anonymous individual using a Google account with the name “momo Otanii” published 24 a review of the Clinic on Google, giving it a one-star rating. Aoki Decl. ¶ 11; see ECF 1-3 Exh. 25 A. Aoki asserts that the review is false, has damaged the reputation of the Clinic, and has had a 26 significant negative effect on business operations. Aoki Decl. ¶¶ 12-13. 27 28 Aoki seeks to file a civil lawsuit against the anonymous individual in Japan, under Articles 709 and 710 of the Civil Code of Japan, which are the statutes for reputational torts. Aoki Decl. Dockets.Justia.com Case 5:22-mc-80249-BLF Document 6 Filed 09/29/22 Page 2 of 6 1 ¶¶ 16-18; ECF No. 1-2 (“Kanda Decl.”) ¶¶ 6-10. But because Japanese law does not allow 2 lawsuits to be filed against anonymous persons, Aoki must first determine the identity of the 3 anonymous individual. Kanda Decl. ¶ 11. Aoki is therefore seeking to subpoena Google to learn 4 the identity of the anonymous individual. Id. ¶ 12; see ECF No. 1 at 11-15 (subpoena). The 5 subpoena asks for information associated with the identified account and any associated accounts, 6 including any names, addresses, email addresses, telephone numbers, credit card names (excluding 7 numbers), and identifying access log information, such as IP addresses. ECF No. 1 at 14-15. Aoki filed an ex parte application asking this court to authorize the serving of this supoena 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 on Respondent. App. II. 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, including criminal investigations conducted before formal accusation. The order may be made ... upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court.... To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure. 17 28 U.S.C. § 1782(a). The statute’s purpose is “to provide federal-court assistance in the gathering 18 evidence for use in foreign tribunals.” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 19 247 (2004). Section 1782 permits district courts to authorize discovery “where three general 20 requirements are satisfied: (1) the person from whom the discovery is sought ‘resides or is found’ 21 in the district of the district court where the application is made; (2) the discovery is ‘for use in a 22 proceeding in a foreign or international tribunal’; and (3) the application is made by a foreign or 23 international tribunal or ‘any interested person.’” Khrapunov v. Prosyankin, 931 F.3d 922, 925 24 (9th Cir. 2019) (quoting § 1782(a)). 25 But “a district court is not required to grant a § 1782(a) discovery application simply 26 because it has the authority to do so.” Intel, 542 U.S. at 264. Instead, a district court has 27 discretion to authorize discovery under Section 1782. Id. at 260-61. In exercising this discretion, 28 a district court should consider the following four factors identified by the Supreme Court: (1) 2 Case 5:22-mc-80249-BLF Document 6 Filed 09/29/22 Page 3 of 6 1 whether the “person from whom discovery is sought is a participant in the foreign proceeding”; (2) 2 “the nature of the foreign tribunal, the character of the proceedings underway abroad, and the 3 receptivity of the foreign government or the court or agency abroad to U.S. federal court judicial 4 assistance”; (3) whether the request “conceals an attempt to circumvent foreign proof-gathering 5 restrictions or other policies of a foreign country or the United States”; and (4) whether the request 6 is “unduly intrusive or burdensome.” Id. at 264-65. In exercising its discretion, the district court 7 should consider the twin aims of the statute: “providing efficient assistance to participants in 8 international litigation and encouraging foreign countries by example to provide similar assistance 9 to our courts.” Id. at 252. Section 1782 applications are generally considered on an ex parte basis because “parties United States District Court Northern District of California 10 11 will be given adequate notice of any discovery taken pursuant to the request and will then have the 12 opportunity to move to quash the discovery or to participate in it.” IPCom GMBH & Co. KG v. 13 Apple Inc., 61 F. Supp. 3d 919, 922 (N.D. Cal 2014) (quoting In re Republic of Ecuador, No. C- 14 10-80225 MISC CRB (EMC), 2010 WL 3702427, at *2 (N.D. Cal. Sept. 15, 2010)). 15 “Consequently, orders granting § 1782 applications typically only provide that discovery is 16 ‘authorized,’ and thus the opposing party may still raise objections and exercise its due process 17 rights by challenging the discovery after it is issued via a motion to quash, which mitigates 18 concerns regarding any unfairness of granting the application ex parte.” In re Varian Med. Sys. 19 Int’l AG, No. 16-mc-80048-MEJ, 2016 WL 1161568, at *2 (N.D. Cal. Mar. 24, 2016). 20 III. DISCUSSION 21 A. 22 Aoki’s request satisfies the requirements of Section 1782. First, the statute requires that Statutory Requirements 23 Respondent be found in the district. A business entity is “found” in the judicial district where it is 24 incorporated or headquartered. Illumina Cambridge Ltd. v. Complete Genomics, Inc., No. 19-mc- 25 80215-WHO(TSH), 2020 WL 820327, at *3 (N.D. Cal. Feb. 19, 2020) (collecting cases). Google 26 is headquartered in Mountain View, California. Kanda Decl. ¶ 5. Mountain View, California is 27 within this district, so this requirement is met. 28 Second, the discovery must be for use in a proceeding in a foreign tribunal. For a 3 Case 5:22-mc-80249-BLF Document 6 Filed 09/29/22 Page 4 of 6 1 proceeding to meet this requirement, it need not be “pending” or “imminent”; it need only be 2 “within reasonable contemplation.” Intel, 542 U.S. at 259. Here, a civil lawsuit is within 3 reasonable contemplation because Aoki has declared that he intends to bring a lawsuit under 4 Japanese tort law once he learns the identity of the anonymous individual. Aoki Decl. ¶¶ 16-17; 5 Kanda Decl. ¶¶ 6-9. He has already retained counsel for the purpose of doing so. See Aoki Decl. 6 ¶ 16; Kanda Decl. ¶ 4. United States District Court Northern District of California 7 Third, an application under Section 1782 must be brought by an “interested person.” A 8 litigant in a foreign proceeding is an “interested person” for purposes of Section 1782. Intel, 542 9 U.S. at 256-57. As the putative plaintiff, Aoki is an interested person. Aoki Decl. ¶ 17. 10 B. 11 The discretionary factors identified by the Supreme Court in Intel also weigh in favor of 12 13 14 Discretionary Intel Factors the Court granting the application. i. Respondent is not a participant in the foreign action. The first factor, whether the respondent is a participant in the foreign action, supports 15 obtaining discovery from entities who are not parties in the foreign tribunal. Intel, 542 U.S. at 16 264. “[N]onparticipants in the foreign proceeding may be outside the foreign tribunal’s 17 jurisdictional reach; hence, their evidence, available in the United States, may be unobtainable 18 absent § 1782(a) aid.” Id. Here, Google will not be a party or participant in the Japanese lawsuit; 19 the only defendant would be the anonymous individual. Kanda Decl. ¶ 13. This factor therefore 20 weighs in favor of granting the application. 21 ii. Japanese courts are receptive to U.S. judicial assistance. 22 The Supreme Court next requires a district court to consider “the nature of the foreign 23 tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign 24 government or the court or agency abroad to U.S. federal-court judicial assistance.” Intel, 542 25 U.S. at 264. “This factor focuses on whether the foreign tribunal is willing to consider the 26 information sought.” In re Varian Med. Sys., No. 16-mc-80048-MEJ, 2016 WL 1161568, at *4 27 (N.D. Cal. Mar. 24, 2016). 28 Aoki has submitted a declaration from his attorney, who is admitted to practice in Japan, 4 United States District Court Northern District of California Case 5:22-mc-80249-BLF Document 6 Filed 09/29/22 Page 5 of 6 1 that asserts that Japanese courts are receptive to assistance in discovery by U.S. federal courts. 2 Kanda Decl. ¶¶ 14-15. The Court is not aware of any directive from Japan against the use of 3 Section 1782 evidence. See In re Jt. Stock Co. Raiffeinsenbank, No. 16-mc-80203-MEJ, 2016 WL 4 6474224, at *5 (N.D. Cal. Nov. 2, 2016) (“Absent this type of clear directive, however, a district 5 court’s ruling should be informed by section 1782’s overarching interest in ‘providing equitable 6 and efficacious procedures for the benefit of tribunals and litigants involved in litigation and 7 international aspects.’” (quoting Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d 1095, 1100 (2d Cir. 8 1995))). In fact, courts in this district have previously granted Section 1782 discovery for use in 9 proceedings in Japanese courts. See In re Med. Corp. H&S, No. 19-mc-80058-VKD, 2019 WL 10 1230440 (N.D. Cal. Mar. 15, 2019); In re Med. Corp. Seishinkai, No. 21-mc-80160-SVK, 2021 11 WL 3514072 (N.D. Cal. Aug. 10, 2021). Therefore, this factor weighs in favor of granting 12 discovery. 13 14 iii. There is no circumvention of foreign discovery procedures. The third factor asks a court to consider whether the applicant is aiming to circumvent the 15 foreign jurisdiction’s proof-gathering restrictions. Intel, 542 U.S. at 265. This factor will weigh 16 in favor of discovery if there is “nothing to suggest that [the applicant] is attempting to circumvent 17 foreign proof-gathering restrictions.” In re Google Inc., No. 14-mc-80333-DMR, 2014 WL 18 7146994, at *3 (N.D. Cal. Dec. 15, 2014). 19 Here, there is no reason to believe that Aoki is seeking to circumvent Japanese evidence 20 laws. Aoki’s attorney stated as much in his declaration. Kanda Decl. ¶ 16. Absent any evidence 21 to the contrary, this factor weighs in favor of granting discovery. 22 23 iv. The request is not unduly burdensome or intrusive. Finally, the last Intel factor asks a court to consider whether the proposed discovery is 24 overly burdensome or intrusive. 542 U.S. at 265. The subpoena seeks information from Google 25 about the anonymous individual. The subpoena appears to be narrowly tailored to seeking the 26 information that is necessary to identify the identity of the putative defendant, and courts have 27 found that requests seeking similar information were not unduly intrusive or burdensome. Kanda 28 Decl. ¶¶ 17-22; see Med. Corp. H&S, 2019 WL 1230440, at *3-4; Med. Corp. Seishinkai, 2021 5 Case 5:22-mc-80249-BLF Document 6 Filed 09/29/22 Page 6 of 6 1 WL 3514072, at *4-5. To the extent Respondent asserts that any of the information sought by 2 Aoki is burdensome or confidential or proprietary, it can bring a motion to quash or the parties can 3 enter a protective order. See, e.g., In re Illumina Cambridge Ltd., No. 19-mc-80215-WHO (TSH), 4 2019 WL 5811467, at *5 (N.D. Cal. Nov. 7, 2019) (offering similar options to Respondents). 5 IV. 6 7 ORDER For the foregoing reasons, IT IS HEREBY ORDERED that the Court GRANTS the ex parte application authorizing discovery under 28 U.S.C. § 1782(a). 8 9 10 United States District Court Northern District of California 11 Dated: September 29, 2022 ______________________________________ BETH LABSON FREEMAN United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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