In Re Ex Parte Application of Team Co, Ltd., No. 5:2022mc80183 - Document 24 (N.D. Cal. 2023)
Court Description: Order Denying 16 Motion to Quash Subpoena. Signed by Magistrate Judge Virginia K. DeMarchi. (vkdlc1, COURT STAFF) (Filed on 2/1/2023)
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In Re Ex Parte Application of Team Co, Ltd. Doc. 24 Case 5:22-mc-80183-VKD Document 24 Filed 02/01/23 Page 1 of 11 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION United States District Court Northern District of California 7 8 IN RE EX PARTE APPLICATION OF TEAM CO., LTD., 9 Applicant. Case No. 22-mc-80183-VKD 10 ORDER DENYING MOTION TO QUASH SUBPOENA 11 Re: Dkt. No. 16 12 13 On September 7, 2022, the Court granted, with modifications, applicant Team Co., Ltd.’s 14 15 (“Team Co.”) ex parte application for an order pursuant to 28 U.S.C. § 1782 authorizing service of 16 a subpoena for documents on respondent Google LLC (“Google”). Dkt. No. 14. Google moves to 17 quash the subpoena. Dkt. No. 16. The Court held a combined hearing on Google’s motion and similar motions to quash filed 18 19 by Google and Twitter in In re Ex Parte Application of Takada (No. 22-mc-80221) and In re Ex 20 Parte Application of Takagi (No. 22-mc-80240). Having considered the parties’ submissions, as 21 well as oral argument, the Court denies Google’s motion to quash.1 22 I. BACKGROUND Team Co. is a Japanese corporation that operates a restaurant in Aichi, Japan. Dkt. No. 1 23 24 at 1. On May 10, 2022, a person using a Google account with the display name “SK” posted a 25 review of the restaurant with a one-star rating on the restaurant’s Google Map review page. Id. at 26 2. The text of the review (as translated in Team Co.’s application) states: “When I went last time, 27 28 1 Team Co. and Google have consented to magistrate judge jurisdiction. Dkt. Nos. 7, 10 Dockets.Justia.com Case 5:22-mc-80183-VKD Document 24 Filed 02/01/23 Page 2 of 11 1 a customer at around 12:45 on May 2 dropped 140,000 yen and couldn’t get the matter resolved 2 by phone afterwards, so I wouldn’t go here! Maybe it was a customer or someone working at this 3 restaurant? It might have been better to call the police!” Dkt. No. 1-3, Ex. A. 4 In its application, Team Co. asserted that the review includes false statements accusing 5 restaurant employees of stealing a customer’s money and refusing to return it. Dkt. No. 1 at 3; 6 Dkt. No. 1-1 ¶ 10. It explained that the review has damaged the restaurant’s reputation and has 7 negatively impacted its business. Dkt. No. 1-1 ¶ 11. Team Co. stated that it intends to file a 8 lawsuit in Japan asserting claims for violations of Articles 709 and 710 of the Japanese Civil Code 9 once it ascertains the true identity of SK. Dkt. No. 1 at 3; Dkt. No. 1-2 ¶¶ 6-9. Team Co. applied for permission to serve a subpoena on Google to obtain documents that United States District Court Northern District of California 10 11 would allow it to identify SK. Dkt. No. 1, Ex. A at ECF 14-15. The Court granted the 12 application, with modifications, but required Google to give notice to the account holder before 13 complying with the subpoena. Dkt. No. 14 at 8-9. In addition, the Court authorized Google or 14 “any person whose identifying information is sought” to file a motion to quash or other motion 15 contesting the subpoena. Id. at 9. Google now moves to quash the subpoena. Dkt. No. 16. Team Co. opposes the motion. 16 17 Dkt. No. 17. 18 II. LEGAL STANDARD 19 Rule 45(d)(3)(A)(iii) requires a court to quash or modify a subpoena that “requires 20 disclosure of privileged or other protected matter, if no exception or waiver applies.” Fed. R. Civ. 21 P. 45(d)(3)(A)(iii). 22 Pursuant to 28 U.S.C. § 1782, a district court may order the production of documents or 23 testimony for use in a foreign legal proceeding, unless the disclosure would violate a legal 24 privilege. 28 U.S.C. § 1782(a); Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 246- 25 47 (2004). The statute may be invoked where: (1) the discovery is sought from a person residing 26 in the district of the court to which the application is made; (2) the discovery is for use in a 27 proceeding before a foreign tribunal; and (3) the applicant is a foreign or international tribunal or 28 an “interested person.” Intel, 542 U.S. at 246. 2 Case 5:22-mc-80183-VKD Document 24 Filed 02/01/23 Page 3 of 11 1 A district court is not required to grant an application that meets the statutory criteria, but 2 instead retains discretion to determine what discovery, if any, should be permitted. Id. at 264. In 3 exercising that discretion, the court considers several factors: (1) whether “the person from whom discovery is sought is a participant in the foreign 4 proceeding”; 5 6 (2) “the nature of the foreign tribunal, the character of the proceedings underway abroad, 7 and the receptivity of the foreign government or the court or agency abroad to U.S. 8 federal-court judicial assistance”; (3) whether the discovery request “conceals an attempt to circumvent foreign proof- 9 gathering restrictions or other policies of a foreign country or the United States”; and 10 (4) whether the discovery requested is “unduly intrusive or burdensome.” United States District Court Northern District of California 11 12 Id. at 264-65. 13 III. DISCUSSION 14 Google does not dispute that Team Co.’s application meets the statutory requirements of 15 28 U.S.C. § 1782(a). Nor does it contend that compliance with the subpoena requires Google to 16 undertake unduly burdensome or costly efforts to search for and produce the documents 17 requested.2 Rather, Google moves to quash the subpoena on the ground that because the discovery 18 requested implicates the First Amendment rights of an anonymous speaker, without adequate 19 justification and evidentiary support, the subpoena is “unduly intrusive and burdensome” under 20 the fourth Intel factor. Dkt. No. 16 at 2. Team Co. opposes the motion to quash on the ground 21 that the First Amendment does not apply to the speech in question, and even if it did, Team Co. 22 has demonstrated good cause for the discovery it seeks. Dkt. No. 17 at 1. In its reply brief, 23 Google raises an additional argument that the subpoena “conceals an attempt to circumvent” a 24 U.S. policy favoring freedom of speech under the third Intel factor. Dkt. No. 18 at 7. 25 26 27 28 In a footnote at the end its reply brief, Google complains that Team Co.’s document requests are “overbroad.” This belated objection is too little, too late. Est. of Saunders v. Comm’r, 745 F.3d 953, 962 n.8 (9th Cir. 2014) (“Arguments raised only in footnotes, or only on reply, are generally deemed waived.”). 2 3 Case 5:22-mc-80183-VKD Document 24 Filed 02/01/23 Page 4 of 11 1 A. Whether the First Amendment Applies to Team Co.’s Application Google argues that anonymous online speech is protected by the First Amendment to the 2 U.S. Constitution, and that “[t]his protection applies in the context of Section 1782 applications 3 when a foreign civil litigant, such as Applicant, seeks discovery in the United States with the 4 assistance of United States courts.” Dkt. No. 15 at 5. Google argues that the Court may not 5 authorize discovery to ascertain the identity of SK unless Team Co. first satisfies the requirements 6 of the Highfields test. Id. at 6 (referring to Highfields Capital Mgmt., L.P. v. Doe, 385 F. Supp. 2d 7 969 (N.D. Cal. 2005)). Team Co. responds that the First Amendment does not protect the speech 8 of a non-U.S. citizen located in Japan whose speech is not directed at a U.S. audience. Dkt. No. 9 17 at 1, 5. 10 U.S. citizens, whether inside or outside U.S. territory, possess First Amendment rights. United States District Court Northern District of California 11 Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, Inc. (“USAID I”), 570 U.S. 205 (2013). 12 Moreover, absent national security concerns, the First Amendment protects the right to receive 13 information in the United States from outside U.S. territory. Thunder Studios, Inc. v. Kazal, 13 14 F.4th 736, 743-44 (9th Cir. 2021), cert. denied sub nom. David v. Kazal, 142 S. Ct. 1674 (2022). 15 However, while non-citizens within a U.S. territory may possess certain constitutional rights, “it is 16 long settled as a matter of American constitutional law that foreign citizens outside U.S. territory 17 18 do not possess rights under the U.S. Constitution.” Agency for Int'l Dev. v. All. for Open Soc'y Int'l, Inc. (“USAID II”), 140 S. Ct. 2082, 2086 (2020) (holding that foreign corporations do not 19 possess First Amendment rights, even if affiliated with U.S. entities). 20 Google cites no contrary authority. Instead, it relies exclusively on cases that assume, 21 without discussion or analysis, that the First Amendment applies. See Dkt. No. 16 at 5-7 (citing 22 Tokyo Univ. of Social Welfare and In re ex parte application for Himeka Kaminaguchi); see also 23 Dkt. No. 18 at 3 (citing additional district court cases in reply). Indeed, in its motion to quash, 24 Google entirely ignores the only case directly on point in this District: Judge Tse’s decision in 25 Zuru, Inc. v. Glassdoor, Inc., --- F. Supp. 3d ----, No. 22-MC-80026-AGT, 2022 WL 2712549 26 (N.D. Cal. July 11, 2022). Zuru expressly considered and rejected the proposition that the Court 27 must apply First Amendment scrutiny to an application for discovery under 28 U.S.C. § 1782 28 4 Case 5:22-mc-80183-VKD Document 24 Filed 02/01/23 Page 5 of 11 1 where the discovery is sought in aid of a foreign defamation action against anonymous posters of 2 reviews critical of a foreign company: 3 4 5 6 7 Zuru, 2022 WL 2712549, at *5 (quoting USAID II, 140 S. Ct. at 2086). In its reply, Google calls 8 Zuru an “outlier” and suggests that the Court nevertheless should rely on the cases that merely 9 assume the First Amendment applies. See Dkt. No. 18 at 1, 4. 10 United States District Court Northern District of California Courts use the “real evidentiary basis” standard [of Highfields] to protect First Amendment rights. But the speakers here, the anonymous reviewers, don’t have those rights. They worked for Zuru in New Zealand, and there’s no reason to believe they were U.S. citizens. “[F]oreign citizens outside U.S. territory do not possess rights under the U.S. Constitution,” including under the First Amendment. Here, as in Zuru, there is no reason to believe that SK, the anonymous poster, is a U.S. 11 citizen. SK’s review was written in Japanese and directed at a Japanese business, and while the 12 review may be accessible to anyone with an Internet connection, including U.S. citizens, the 13 review was not directed at the United States or anyone residing in U.S. territory. Cf. Lamont v. 14 Postmaster General, 381 U.S. 301, 306 (1965) (holding unconstitutional a federal statute ordering 15 seizure of “communist political propaganda” that was “printed or otherwise prepared in a foreign 16 country” and sent to the United States). Google cites no authority for the expansive proposition 17 that anonymous speech implicates First Amendment protections if that speech is merely accessible 18 to U.S. citizens over the Internet. 19 Google observes that Team Co. has not demonstrated definitively that the anonymous 20 speaker is not a U.S. citizen. See Dkt. No. 18 at 3. In these circumstances, Google suggests that 21 the Court take a “protective approach” and assume that the anonymous speaker enjoys First 22 Amendment protection. See id. at 4. The Court declines this suggestion for two principal reasons. 23 First, Google is the party moving to quash and has access to information Team Co. does not have, 24 including a means to communicate with account holder SK. Even if Google also does not have 25 definitive information about SK’s citizenship, it likely is in a better position than Team Co. to 26 identify facts relevant to the question of citizenship. Having examined its own records and given 27 notice to SK, as the Court ordered, Google has identified no information suggesting that SK might 28 be a U.S. citizen or otherwise entitled to First Amendment protection. During the hearing, Google 5 Case 5:22-mc-80183-VKD Document 24 Filed 02/01/23 Page 6 of 11 1 advised the Court that the anonymous speaker has not indicated to Google that he or she objects to 2 disclosure of the information Team Co. requests, and no such objection has been filed with the 3 Court. Second, as the Supreme Court emphasized in Intel, “[s]ection 1782 is a provision for United States District Court Northern District of California 4 5 assistance to tribunals abroad.” Intel, 542 U.S. at 263. It does not require an applicant to show 6 “that United States law would allow discovery in domestic litigation analogous to the foreign 7 proceeding.” Id. Google’s objection to Team Co.’s subpoena reflects a deep skepticism about the 8 merits of Japanese defamation law and about the operation of the Japanese legal system. See, e.g., 9 Dkt. No. 16 at 3 (citing the “severity of Japan’s defamation law” in urging the Court to consider 10 whether the account holder should be “unmasked”).3 The Court agrees with Judge Tse’s 11 observations in Zuru that “[o]ur country’s commitment to free speech isn’t universally shared; and 12 even in other countries that protect free speech, a different balance is often struck between the 13 right to free speech and the right to protect one’s reputation, with the latter right usually receiving 14 more weight.” Zuru, 2022 WL 2712549, at *5. Simply assuming First Amendment protection 15 applies, in the absence of any facts or circumstances suggesting that it does, is inconsistent with 16 Intel’s caution against evaluating an anticipated foreign proceeding through the lens of the nearest 17 domestic analog. While the Court certainly has discretion to consider “the nature of the foreign tribunal” and 18 19 “the character of the proceedings,” see Intel, 542 U.S. at 246 (second factor),4 the Court is not 20 persuaded that Team Co.’s subpoena implicates the First Amendment to the U.S. Constitution, or 21 In support of its claim about the “severity” of Japanese defamation law, Google relies on a citation to the Japanese criminal code and a related news broadcast. See Dkt. No. 16 at 3 n.1. However, Team Co. seeks discovery in aid of a civil action for defamation. 3 22 23 Google does not suggest that either its compliance with the subpoena or Team Co.’s proposed Japanese defamation action will lead to a violation of fundamental human rights. See In re Premises Located at 840 140th Ave. NE, Bellevue, Wash., 634 F.3d 557, 572 (9th Cir. 2011) (“We can conceive of situations in which the Constitution might require the district court to deny a request for assistance. For example, if credible evidence demonstrated that compliance with a subpoena would lead to an egregious violation of human rights, such as torture, then the Constitution may require the courts to deny assistance.”). 4 24 25 26 27 28 6 Case 5:22-mc-80183-VKD Document 24 Filed 02/01/23 Page 7 of 11 1 that the subpoena will impose an undue burden on Google or the anonymous speaker unless Team 2 Co. first makes a prima facie showing of defamation under Japanese law, supported by evidence, 3 under the Highfields test. 4 B. 5 Whether Team Co.’s Application Must Meet an Alternative Standard of “Good Cause” or “Plausibility” Google notes that some courts require applicants seeking discovery before a foreign 6 7 proceeding is initiated to meet the “good cause” standard that applies to requests for early discovery under the Federal Rules of Civil Procedure. Dkt. No. 16 at 6. The “good cause” 8 standard requires consideration of whether the applicant: (1) identifies the party with sufficient 9 specificity that the court can determine that the party is a real person subject to suit; (2) identifies 10 all previous steps taken to locate and identify the party; (3) demonstrates that the action can 11 United States District Court Northern District of California withstand a motion to dismiss; and (4) proves that the discovery is likely to lead to identifying 12 information. See, e.g., Tokyo Univ. of Soc. Welfare v. Twitter, Inc., No. 21-MC-80102-DMR, 13 2021 WL 4124216, at *3 (N.D. Cal. Sept. 9, 2021); In re Frontier Co., Ltd., No. 19-MC-8018414 LB, 2019 WL 3345348, at *3 (N.D. Cal. July 25, 2019); In re Ex Parte Application of Jommi, No. 15 C 13-80212 CRB (EDL), 2013 WL 6058201, at *4 (N.D. Cal. Nov. 15, 2013); see also Columbia 16 Ins. Co. v. seescandy.com, 185 F.R.D. 573, 577 (N.D. Cal. 1999) (“As a general rule, discovery 17 proceedings take place only after the defendant has been served; however, in rare cases, courts 18 have made exceptions, permitting limited discovery to ensue after filing of the complaint to permit 19 the plaintiff to learn the identifying facts necessary to permit service on the defendant.”). This 20 approach appears to be based on a view that “discovery under section 1782 is guided by the 21 standards set forth in the Federal Rules of Civil Procedure.” Tokyo Univ., 2021 WL 4124216, at 22 *3. 23 The proposition that applicants for discovery pursuant to 28 U.S.C. § 1782 are, or should 24 be, required to show “good cause” for that discovery does not have clear support in the language 25 of the statute itself. Section 1782 provides in relevant part: 26 27 28 The order [authorizing discovery] may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To 7 Case 5:22-mc-80183-VKD Document 24 Filed 02/01/23 Page 8 of 11 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. 1 2 3 4 5 28 U.S.C. § 1782(a). In Intel, the Supreme Court described this “practice and procedure” part of the statute as a “mode-of-proof-taking instruction” that “imposes no substantive limitation on the discovery to be had.” Intel, 542 U.S. at 260 n.11.5 For this reason, the Court questions whether it is appropriate to require Team Co. to meet the “good cause” standard Google describes as a pre- 6 condition for discovery. 7 8 9 Alternatively, Google argues in its reply brief that Team Co.’s proposed defamation action does not meet the “plausibility standard set forth in Zuru,” and the subpoena should be quashed on this basis. Google’s arguments about a “plausibility” standard are not well-developed, and it is not 10 entirely clear what standard Google would have the Court apply. The Iqbal/Twombly United States District Court Northern District of California 11 “plausibility” standard for domestic pleadings requires factual allegations that permit the court to 12 draw a reasonable inference that the defendant is liable for the alleged misconduct. Ashcroft v. 13 Iqbal, 556 U.S. 662, 678-79 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 14 Nothing in the text of 28 U.S.C. § 1782 suggests that Congress contemplated that district courts 15 16 would apply this type of “plausibility” test to the foreign claim before authorizing discovery. Indeed, undertaking an Iqbal/Twombly-type “plausibility” review would be difficult to do where, 17 as here, the foreign proceeding is anticipated but no complaint has been filed, or where the case18 initiating documents in the foreign proceeding do not require the same kind of supporting factual 19 allegations. See Intel, 542 U.S. at 259 (adjudicative proceedings need not be pending or 20 imminent, so long as they are within reasonable contemplation; discovery may be obtained for use 21 in pre-complaint investigations). 22 In Zuru, Judge Tse did not require Zuru to support each element of its defamation claim 23 24 25 with competent evidence, but instead “considered Zuru’s allegations and concluded that they could support a defamation claim in New Zealand.” Zuru, 2022 WL 2712549, at *2-3, *6; see also id., at *2 (“Putting aside whether Zuru will be able to prove these four elements [of 26 27 28 However, elsewhere, the Court suggested that “the controls on discovery” available to the district court, such as in Rules 26(b) and (c), could be employed to prevent improper discovery of trade secrets and other confidential information. Intel, 542 at 266. 8 5 Case 5:22-mc-80183-VKD Document 24 Filed 02/01/23 Page 9 of 11 1 defamation] at trial, it is clear that the company plausibly can plead them.”). Zuru acknowledged 2 that “a merits review isn’t required” but that “[a] peek at the merits” was appropriate in that 3 particular case. Zuru, 2022 WL 2712549, at *2. In peeking at the merits, Judge Tse undertook a 4 substantive review of Zuru’s anticipated civil action: the court examined the elements of Zuru’s 5 claim for defamation under New Zealand law, considered Zuru’s supporting declarations, and 6 assessed Glassdoor’s counter-arguments before concluding that Zuru could support a plausible 7 claim for defamation under New Zealand law. Id. at *2-*3. While nothing prevents the Court from considering whether a section 1782 application 8 United States District Court Northern District of California 9 describes a plausible claim for relief, such that the claim might withstand a motion to dismiss 10 under Rule 12(b)(6) and Iqbal/Twombly if it were filed as a domestic action, or otherwise reflects 11 “good cause” for discovery, the Court is reluctant to endorse a standard for exercising discretion 12 that does not derive from the statute itself (or the Supreme Court’s interpretation of it) and that 13 seems ill-suited to an application for discovery in aid of a foreign proceeding that is within 14 reasonable contemplation but not yet filed. However, at a minimum, a district court can require an 15 applicant to describe the legal and factual bases for a contemplated foreign legal proceeding, and 16 to explain how the discovery the applicant seeks will aid prosecution of that proceeding. 17 Here, Team Co. exceeds that minimum standard. It has described a plausible claim against 18 SK under Japanese law and has shown good cause for discovery.6 Team Co. intends to file a civil 19 action for defamation, or damage to its reputation, under Articles 709 and 710 of the Civil Code of 20 Japan. Dkt. No. 17 at 11. Article 709 provides for general tort liability, including liability for 21 reputational torts, and Article 710 provides that damages may encompass compensable loss for 22 interests other than damage to property. Id. According to the declaration of Yoshiaki Kitazawa, 23 the Japanese lawyer representing Team Co. in Japan, the elements of a reputational tort in Japan 24 are: (1) an unlawful act infringing a person’s reputation; (2) damages; (3) a causal relationship 25 between the unlawful act and the damages; and (4) intent or negligence. Id. at 11-12 (citing Dkt. 26 27 28 6 Google does not dispute that Team Co. identified SK with sufficient specificity, explained why it requires discovery from Google to locate and identify SK, and demonstrated that Google likely has the identifying information Team Co. needs. 9 Case 5:22-mc-80183-VKD Document 24 Filed 02/01/23 Page 10 of 11 1 No. 17-2 (Kitazawa decl.) ¶¶ 7-13). A statement is an unlawful act if the statement lowers a 2 person’s public reputation based on how an average reader would ordinarily understand the 3 statement, and the statement is either a false assertion of fact or an opinion based on untrue facts. 4 Id. at 12. United States District Court Northern District of California 5 The anonymous statement in question is: “When I went last time, a customer at around 6 12:45 on May 2 dropped 140,000 yen and couldn’t get the matter resolved by phone afterwards, so 7 I wouldn’t go here! Maybe it was a customer or someone working at this restaurant? It might 8 have been better to call the police!” Dkt. No. 1-3, Ex. A. According to Team Co., the statement 9 suggests that: restaurant employees kept money they knew belonged to a restaurant customer, the 10 customer could not resolve the matter informally with the restaurant, the matter should be referred 11 to the police, and others should not patronize the restaurant. Team Co. relies on the declaration of 12 Naoko Teramatsu, the Representative Director of Team Co., who attests that she conducted an 13 investigation and identified no basis for the factual assertions in the review, which she contends 14 are false. Dkt. No. 17-1 (Teramatsu decl.) ¶¶ 5-7. Ms. Teramatsu also attests to the nature of the 15 harm Team Co. has suffered or expects to suffer as a result of the anonymous statement. Id. ¶¶ 5, 16 8-12. Team Co.’s Japanese counsel attests that, in his opinion, the statement is actionable under 17 Japanese law, which he discusses at length, and that Team Co. will be able to satisfy the other 18 elements of a reputational tort. Id. ¶¶ 11-26. 19 In its motion to quash, Google ignores Japanese law in challenging the viability of Team 20 Co.’s proposed civil action. See Dkt. No. 16 at 7-8. In reply to Team Co.’s opposition and 21 supporting declarations, Google continues to rely on U.S. legal principles. Google does not 22 provide any competing declaration regarding the requirements of Japanese law. Its principal 23 objection is that the anonymous statement cannot reasonably be understood as a false assertion of 24 fact and is unlikely to have harmed Team Co.’s business. See Dkt. No. 18 at 10-12. In any event, 25 at oral argument Google indicated that it does not necessarily take the position that the discovery 26 should be denied; rather, Google’s primary interest is in having the Court conduct some sort of 27 review of an applicant’s claims before information is produced. Dkt. No. 23. 28 It remains to be seen whether Team Co. succeeds on the merits of its anticipated 10 United States District Court Northern District of California Case 5:22-mc-80183-VKD Document 24 Filed 02/01/23 Page 11 of 11 1 defamation claims. But Google has not made a persuasive case that the proposed civil action for 2 defamation is pretextual or intended solely to harass, or that there is any other reason for this 3 Court to quash Team Co.’s subpoena in the exercise of its discretion under 28 U.S.C. § 1782. The 4 merits of Team Co.’s action should be addressed by the relevant court in Japan. 5 C. 6 In its reply brief, Google raises an additional argument that the discovery Team Co. seeks Whether the Subpoena Circumvents U.S. Policy 7 from Google reflects an effort to circumvent a policy of the United States to protect free speech 8 rights, consistent with First Amendment principles, even if the speaker is a non-citizen residing in 9 a foreign country and the speech is not directed to the United States. Dkt. No. 18 at 7 (citing 10 Intel, 542 U.S. at 264-65 (third factor)). As Team Co. correctly observes, Google did not raise this 11 issue in its motion to quash, see Dkt. No. 17 at 7, and therefore Team Co. did not have an 12 opportunity to respond to this argument in its opposition. 13 The Court will not consider arguments raised by the moving party for the first time in a 14 reply brief. Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not 15 consider arguments raised for the first time in a reply brief.”). 16 IV. 17 CONCLUSION For the reasons explained above, the Court denies Google’s motion to quash. Google shall 18 produce documents responsive to the subpoena no later than 30 days from the date of this order. 19 Any information Team Co. obtains pursuant to the subpoena may be used only for 20 purposes of the anticipated civil action for the violation of Articles 709 and 710 of the Japanese 21 Civil Code, and Team Co. may not release such information or use it for any other purpose, absent 22 a Court order authorizing such release or use. 23 24 IT IS SO ORDERED. Dated: February 1, 2023 25 26 VIRGINIA K. DEMARCHI United States Magistrate Judge 27 28 11
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