In Re Ex Parte Application of Geo Holdings Corporation et al v. Google LLC et al, No. 5:2024mc80018 - Document 18 (N.D. Cal. 2024)
Court Description: ORDER GRANTING 1 EX PARTE APPLICATION TO AUTHORIZE FOREIGN DISCOVERY. Signed by Judge Beth Labson Freeman on 3/12/2024. (blflc3, COURT STAFF)(Filed on 3/12/2024) Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)
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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 8 IN RE EX PARTE APPLICATION OF GEO HOLDINGS CORPORATION, et al., Plaintiffs, 9 v. 10 11 GOOGLE LLC, et al., Case No. 24-mc-80018-BLF ORDER GRANTING EX PARTE APPLICATION TO AUTHORIZE FOREIGN DISCOVERY [Re: ECF No. 1] United States District Court Northern District of California Defendants. 12 13 On January 26, 2024, Geo Holdings Corporation (“Applicant”) filed an ex parte 14 application pursuant to 28 U.S.C. § 1782 (“Section 1782”) for an order granting leave to obtain 15 limited discovery from YouTube LLC (“YouTube”) and Google, LLC (“Google”) (collectively as 16 “Witnesses”) in connection with a potential legal action in Japan. See ECF No. 1 (“App.”). For 17 the reasons set forth below, the Court GRANTS the application. 18 19 I. BACKGROUND The following facts are taken from Applicant’s ex parte application. See App. Applicant 20 is a leading company in Japan’s reuse market. Id. at 2. Applicant engages in the buying and 21 selling of videos, DVDs, CDs, games, and books and manages its own stores. Id. Applicant is a 22 publicly traded company and has been listed on the First Section of the Tokyo Stock Exchange 23 since 2004. Id.; ECF No. 2 (“Nakajima Decl.”) ¶ 4. 24 On or about August 17, 2023, certain statements concerning Applicant were posted by two 25 YouTube users under the name of “Zundamon Yamizukan” (the “YouTube Account 1”) and 26 “Ashitanowadai” (the “YouTube Account 2”) (collectively as the “YouTube Accounts”) through 27 videos uploaded to YouTube. App. at 2; Nakajima Decl. ¶ 5. According to Applicant’s Japanese 28 attorney, the YouTube Videos were posted for harassment purposes and constitute defamation and 1 unlawful business interference under Japanese law. Nakajima Decl. ¶ 5; Japan Civil Code Article 2 7098; Japan Penal Code Article 233. The YouTube videos are in Japanese and directed at Japanese 3 individuals and a Japanese company. App. at 4. Applicant intends to bring a lawsuit in Japan 4 against the person(s) associated with the YouTube accounts as soon as the persons’ identities have 5 been ascertained through the discovery sought by this application. Nakajima Decl. ¶ 6. In order 6 to identify said person(s), Applicant claims it is crucial for it to obtain the YouTube account 7 information. Id. ¶ 7. 8 9 10 LEGAL STANDARD Section 1782 provides, in relevant part: 15 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. 16 28 U.S.C. § 1782(a). The statute’s purpose is “to provide federal-court assistance in the gathering 17 evidence for use in foreign tribunals.” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 18 247 (2004). Section 1782 permits district courts to authorize discovery “where three general 19 requirements are satisfied: (1) the person from whom the discovery is sought ‘resides or is found’ 20 in the district of the district court where the application is made; (2) the discovery is ‘for use in a 21 proceeding in a foreign or international tribunal’; and (3) the application is made by a foreign or 22 international tribunal or ‘any interested person.’” Khrapunov v. Prosyankin, 931 F.3d 922, 925 23 (9th Cir. 2019) (quoting § 1782(a)). 11 United States District Court Northern District of California II. 12 13 14 24 But “a district court is not required to grant a § 1782(a) discovery application simply 25 because it has the authority to do so.” Intel, 542 U.S. at 264. Instead, a district court has 26 discretion to authorize discovery under Section 1782. Id. at 260-61. In exercising this discretion, 27 a district court should consider the following four factors identified by the Supreme Court: (1) 28 whether the “person from whom discovery is sought is a participant in the foreign proceeding”; (2) 2 1 “the nature of the foreign tribunal, the character of the proceedings underway abroad, and the 2 receptivity of the foreign government or the court or agency abroad to U.S. federal court judicial 3 assistance”; (3) whether the request “conceals an attempt to circumvent foreign proof-gathering 4 restrictions or other policies of a foreign country or the United States”; and (4) whether the request 5 is “unduly intrusive or burdensome.” Id. at 264-65. In exercising its discretion, the district court 6 should consider the twin aims of the statute: “providing efficient assistance to participants in 7 international litigation and encouraging foreign countries by example to provide similar assistance 8 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 9 10 will be given adequate notice of any discovery taken pursuant to the request and will then have the 11 opportunity to move to quash the discovery or to participate in it.” IPCom GMBH & Co. KG v. 12 Apple Inc., 61 F. Supp. 3d 919, 922 (N.D. Cal 2014) (quoting In re Republic of Ecuador, No. C- 13 10-80225 MISC CRB (EMC), 2010 WL 3702427, at *2 (N.D. Cal. Sept. 15, 2010)). 14 “Consequently, orders granting § 1782 applications typically only provide that discovery is 15 ‘authorized,’ and thus the opposing party may still raise objections and exercise its due process 16 rights by challenging the discovery after it is issued via a motion to quash, which mitigates 17 concerns regarding any unfairness of granting the application ex parte.” In re Varian Med. Sys. 18 Int’l AG, No. 16-mc-80048-MEJ, 2016 WL 1161568, at *2 (N.D. Cal. Mar. 24, 2016). 19 III. DISCUSSION 20 A. 21 Applicant’s request satisfies the requirements of Section 1782. First, the statute requires Statutory Requirements 22 that the respondent be found in the district. A business entity is “found” in the judicial district 23 where it is incorporated or headquartered. Illumina Cambridge Ltd. v. Complete Genomics, Inc., 24 No. 19-mc-80215-WHO(TSH), 2020 WL 820327, at *3 (N.D. Cal. Feb. 19, 2020) (collecting 25 cases). YouTube is headquartered in San Bruno, California and Google is headquartered in 26 Mountain View, California. Nakajima Decl. ¶ 13. Both are within this district, so this 27 requirement is met. 28 Second, the discovery must be for use in a proceeding in a foreign tribunal. For a 3 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. A civil lawsuit in Japan is within 3 reasonable contemplation because Applicant intends to bring a lawsuit in Japan against the 4 persons associated with the YouTube accounts in question as soon as the persons’ identities have 5 been ascertained through the discovery sought by this application. Nakajima Decl. ¶¶ 6-7. 6 7 litigant in a foreign proceeding is an “interested person” for purposes of Section 1782. Intel, 542 8 U.S. at 256-57. Applicant, as a putative plaintiff, is an interested person. App. at 6. 9 10 11 United States District Court Northern District of California Third, an application under Section 1782 must be brought by an “interested person.” A B. Discretionary Intel Factors The discretionary factors identified by the Supreme Court in Intel also weigh in favor of the Court granting the application. 12 13 i. Respondents are not participants in the foreign action. The first factor, whether the respondent is a participant in the foreign action, supports 14 obtaining discovery from entities who are not parties in the foreign tribunal. Intel, 542 U.S. at 15 264. “[N]onparticipants in the foreign proceeding may be outside the foreign tribunal’s 16 jurisdictional reach; hence, their evidence, available in the United States, may be unobtainable 17 absent § 1782(a) aid.” Id. Here, Google and YouTube will be nonparticipants in the civil action 18 that will be initiated in Japan. Nakajima Decl. ¶ 13. This factor therefore weighs in favor of 19 granting the application. 20 ii. Japanese courts are receptive to U.S. judicial assistance. 21 The Supreme Court next requires a district court to consider “the nature of the foreign 22 tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign 23 government or the court or agency abroad to U.S. federal-court judicial assistance.” Intel, 542 24 U.S. at 264. “This factor focuses on whether the foreign tribunal is willing to consider the 25 information sought.” In re Varian Med. Sys., No. 16-mc-80048-MEJ, 2016 WL 1161568, at *4 26 (N.D. Cal. Mar. 24, 2016). 27 The Court is not aware of any directive from Japan against the use of Section 1782 28 evidence. See In re Jt. Stock Co. Raiffeinsenbank, No. 16-mc-80203-MEJ, 2016 WL 6474224, at 4 1 *5 (N.D. Cal. Nov. 2, 2016) (“Absent this type of clear directive, however, a district court’s ruling 2 should be informed by section 1782’s overarching interest in ‘providing equitable and efficacious 3 procedures for the benefit of tribunals and litigants involved in litigation and international 4 aspects.’” (quoting Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d 1095, 1100 (2d Cir. 1995))). And 5 an attorney consulted by Applicant, who is licensed to practice law in Japan, is not aware of any 6 restrictions imposed by or any policies under Japanese law limiting the proof-gathering 7 proceeding in the manner proposed and for the purposes stated herein and in the Application. 8 Nakajima Decl. ¶¶ 1, 14. This factor weighs in favor of granting discovery. 9 United States District Court Northern District of California 10 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 11 foreign jurisdiction’s proof-gathering restrictions. Intel, 542 U.S. at 265. This factor will weigh 12 in favor of discovery if there is “nothing to suggest that [the applicant] is attempting to circumvent 13 foreign proof-gathering restrictions.” In re Google Inc., No. 14-mc-80333-DMR, 2014 WL 14 7146994, at *3 (N.D. Cal. Dec. 15, 2014). 15 Here, there is no reason to believe that Applicant is seeking to circumvent Japanese 16 evidence laws. The attorney consulted by Applicant stated as much in his declaration. Decl. 17 Nakajima ¶¶ 1, 14. Absent any evidence to the contrary, this factor weighs in favor of granting 18 discovery. 19 20 iv. The request is not unduly burdensome or intrusive. The last Intel factor asks a court to consider whether the proposed discovery is overly 21 burdensome or intrusive. 542 U.S. at 265. The discovery sought by Applicant is narrowly 22 tailored to seek only sufficient information to identify the YouTube accounts, and is not unduly 23 intrusive or burdensome, because Applicant is seeking the names, telephone numbers and 24 addresses of the person(s) whose payment method is associated with each of the YouTube 25 Accounts, and does not seek communications, credit card numbers, bank account numbers, or any 26 other sensitive information. App. at 7-9; Nakajima Decl. ¶¶ 8-12; see, e.g., In re Frontier Co., 27 Ltd., No. 19-mc-80184-LB, 2019 WL 3345348, at *5 (N.D. Cal. July 25, 2019) (granting a § 1782 28 request to issue a subpoena for the name, address, email address, telephone number, and name and 5 1 address on credit cards); In re Med. Corp. Seishinkai, No. 21-mc-80160-SVK, 2021 WL 3514072, 2 at *4-5 (N.D. Cal. Aug. 10, 2021). To the extent Google or YouTube assert that any of the 3 information sought by Applicant is burdensome or confidential or proprietary, they can bring a 4 motion to quash, or the parties can enter a protective order. See, e.g., In re Illumina Cambridge 5 Ltd., No. 19-mc-80215- WHO (TSH), 2019 WL 5811467, at *5 (N.D. Cal. Nov. 7, 2019) (offering 6 similar options to Respondents). 7 IV. 8 9 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). 10 United States District Court Northern District of California 11 12 13 Dated: March 12, 2024 ______________________________________ BETH LABSON FREEMAN United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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