Medical Incorporated Association Keizankai, No. 5:2022mc80253 - Document 5 (N.D. Cal. 2022)
Court Description: ORDER GRANTING 1 EX PARTE MOTION TO AUTHORIZE FOREIGN DISCOVERY. Signed by Judge Beth Labson Freeman on 10/4/2022. (blflc2, COURT STAFF) (Filed on 10/4/2022)
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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 8 MEDICAL INCORPORATED ASSOCIATION KEIZANKAI, Plaintiff, 9 v. 10 11 Case No. 22-mc-80253-BLF ORDER GRANTING EX PARTE MOTION TO AUTHORIZE FOREIGN DISCOVERY [Re: ECF No. 1] , United States District Court Northern District of California Defendant. 12 On October 3, 2022, Applicant Medical Incorporated Association Keizankai (“Applicant”) 13 14 filed an ex parte application pursuant to 28 U.S.C. § 1782 (“Section 1782”) for an order granting 15 leave to obtain discovery from Respondent Google LLC (“Google”) in connection with a potential 16 legal action and criminal investigation in Japan. ECF No. 1 (“App.”). For the reasons set forth 17 below, the Court GRANTS Applicant’s application. 18 19 I. BACKGROUND Applicant is a medical incorporated association doing business as Uchihara Toriyama 20 Eyeclinic (“Clinic”) in Mito-shi, Ibaraki-ken, Japan. ECF No. 1-1 (“Toriyama Decl.”) ¶¶ 2-3. 21 The Director of the Clinic is Naoki Toriyama, who is a licensed medical doctor in Japan. Id. ¶ 1. 22 The Clinic is an ophthalmological clinic. Id. ¶ 4. 23 24 The Clinic has a business profile with Google and appears on Google Maps. Toriyama Decl. ¶ 9. Toriyama asserts that many patients find the Clinic using Google. Id. ¶ 8. 25 An anonymous individual using a Google account with the name “M Y” published a 26 review of the Clinic on Google, giving it a one-star rating. Toriyama Decl. ¶ 11; see ECF 1-3 Exh. 27 A. Toriyama asserts that the review is false. Toriyama Decl. ¶ 15. The review has since been 28 removed but Toriyama asserts that, since its deletion, the Clinic has received several other “vague, 1 one-star ratings and reviews.” Id. ¶ 14. Toriyama further asserts that because many patients find 2 the Clinic online, the review has damaged the reputation of the Clinic, decreased the number of 3 new patients, and has had a significant negative effect on business operations. Id. ¶ 16. Toriyama seeks to file a civil lawsuit against the anonymous individual in Japan, under United States District Court Northern District of California 4 5 Articles 709 and 710 of the Civil Code of Japan, which are the statutes for reputational torts. 6 Toriyama Decl. ¶¶ 18-19; ECF No. 1-2 (“Noguchi Decl.”) ¶¶ 6-10. But because Japanese law 7 does not allow lawsuits to be filed against anonymous persons, Toriyama must first determine the 8 identity of the anonymous individual. Noguchi Decl. ¶ 10. Toriyama is also seeking to file a 9 criminal complaint with the police for the crime of defamation pursuant to Article 230, paragraph 10 1 of the Penal Code of Japan. Id. ¶¶ 12-15. Toriyama’s attorney states that a criminal complaint 11 for criminal defamation will not be accepted by authorities unless the complaint provides 12 information that may lead to the true identity of the person who committed the crime. Id. ¶ 15. Applicant is therefore seeking to subpoena Google to learn the identity of the anonymous 13 14 individual. Noguchi Decl. ¶ 16; see ECF No. 1 at 12-16 (subpoena). The subpoena asks for 15 information associated with the identified account or associated accounts, including any names, 16 addresses, email addresses, telephone numbers, credit card names (excluding numbers), and 17 identifying access log information, such as IP addresses. ECF No. 1 at 15-16. Applicant filed an ex parte application asking this court to authorize the serving of this 18 19 20 21 22 23 24 25 26 subpoena 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. 27 28 U.S.C. § 1782(a). The statute’s purpose is “to provide federal-court assistance in the gathering 28 evidence for use in foreign tribunals.” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 2 1 247 (2004). Section 1782 permits district courts to authorize discovery “where three general 2 requirements are satisfied: (1) the person from whom the discovery is sought ‘resides or is found’ 3 in the district of the district court where the application is made; (2) the discovery is ‘for use in a 4 proceeding in a foreign or international tribunal’; and (3) the application is made by a foreign or 5 international tribunal or ‘any interested person.’” Khrapunov v. Prosyankin, 931 F.3d 922, 925 6 (9th Cir. 2019) (quoting § 1782(a)). United States District Court Northern District of California 7 But “a district court is not required to grant a § 1782(a) discovery application simply 8 because it has the authority to do so.” Intel, 542 U.S. at 264. Instead, a district court has 9 discretion to authorize discovery under Section 1782. Id. at 260-61. In exercising this discretion, 10 a district court should consider the following four factors identified by the Supreme Court: (1) 11 whether the “person from whom discovery is sought is a participant in the foreign proceeding”; (2) 12 “the nature of the foreign tribunal, the character of the proceedings underway abroad, and the 13 receptivity of the foreign government or the court or agency abroad to U.S. federal court judicial 14 assistance”; (3) whether the request “conceals an attempt to circumvent foreign proof-gathering 15 restrictions or other policies of a foreign country or the United States”; and (4) whether the request 16 is “unduly intrusive or burdensome.” Id. at 264-65. In exercising its discretion, the district court 17 should consider the twin aims of the statute: “providing efficient assistance to participants in 18 international litigation and encouraging foreign countries by example to provide similar assistance 19 to our courts.” Id. at 252. 20 Section 1782 applications are generally considered on an ex parte basis because “parties 21 will be given adequate notice of any discovery taken pursuant to the request and will then have the 22 opportunity to move to quash the discovery or to participate in it.” IPCom GMBH & Co. KG v. 23 Apple Inc., 61 F. Supp. 3d 919, 922 (N.D. Cal 2014) (quoting In re Republic of Ecuador, No. C- 24 10-80225 MISC CRB (EMC), 2010 WL 3702427, at *2 (N.D. Cal. Sept. 15, 2010)). 25 “Consequently, orders granting § 1782 applications typically only provide that discovery is 26 ‘authorized,’ and thus the opposing party may still raise objections and exercise its due process 27 rights by challenging the discovery after it is issued via a motion to quash, which mitigates 28 concerns regarding any unfairness of granting the application ex parte.” In re Varian Med. Sys. 3 1 Int’l AG, No. 16-mc-80048-MEJ, 2016 WL 1161568, at *2 (N.D. Cal. Mar. 24, 2016). 2 III. 3 A. 4 Applicant’s request satisfies the requirements of Section 1782. First, the statute requires Statutory Requirements 5 that Respondent be found in the district. A business entity is “found” in the judicial district where 6 it is incorporated or headquartered. Illumina Cambridge Ltd. v. Complete Genomics, Inc., No. 19- 7 mc-80215-WHO(TSH), 2020 WL 820327, at *3 (N.D. Cal. Feb. 19, 2020) (collecting cases). 8 Google is headquartered in Mountain View, California. Noguchi Decl. ¶ 5. Mountain View, 9 California is within this district, so this requirement is met. 10 United States District Court Northern District of California DISCUSSION Second, the discovery must be for use in a proceeding in a foreign tribunal. For a 11 proceeding to meet this requirement, it need not be “pending” or “imminent”; it need only be 12 “within reasonable contemplation.” Intel, 542 U.S. at 259. Here, a civil lawsuit is within 13 reasonable contemplation because Toriyama has declared that he intends to bring a lawsuit under 14 Japanese tort law once he learns the identity of the anonymous individual. Toriyama Decl. ¶¶ 18- 15 19; Noguchi Decl. ¶¶ 6-10. He has already retained counsel for the purpose of doing so. See 16 Toriyama Decl. ¶ 18; Noguchi Decl. ¶ 4. Further, Section 1782 applies to criminal proceedings 17 prior to formal accusation. In re O2CNI Co., Ltd., No. C 13-80125, 2013 WL 4442288, at *6 18 (N.D. Cal. Aug. 15, 2013). Toriyama has declared that he intends to file a criminal complaint 19 once he learns the identity of the anonymous individual, and he has retained counsel to do so. 20 Toriyama Decl. ¶¶ 18-19; Noguchi Decl. ¶¶ 4, 11-15. 21 Third, an application under Section 1782 must be brought by an “interested person.” A 22 litigant in a foreign proceeding is an “interested person” for purposes of Section 1782. Intel, 542 23 U.S. at 256-57. Further, the “victim and complainant” in a criminal proceeding is an “interested 24 person.” See In re O2CNI Co., Ltd., 2013 WL 4442288, at *6. As the putative plaintiff in the 25 civil lawsuit and victim and complainant in the criminal investigation, Applicant is an interested 26 person. Toriyama Decl. ¶ 19. 27 B. 28 The discretionary factors identified by the Supreme Court in Intel also weigh in favor of Discretionary Intel Factors 4 1 2 United States District Court Northern District of California 3 the Court granting the application. 1. Respondent is not a participant in the foreign action. The first factor, whether the respondent is a participant in the foreign action, supports 4 obtaining discovery from entities who are not parties in the foreign tribunal. Intel, 542 U.S. at 5 264. “[N]onparticipants in the foreign proceeding may be outside the foreign tribunal’s 6 jurisdictional reach; hence, their evidence, available in the United States, may be unobtainable 7 absent § 1782(a) aid.” Id. Here, Google will not be a party or participant in the Japanese civil 8 lawsuit or criminal proceeding; the only other party would be the anonymous individual. Noguchi 9 Decl. ¶ 17. This factor therefore weighs in favor of granting the application. 10 2. Japanese courts are receptive to U.S. judicial assistance. 11 The Supreme Court next requires a district court to consider “the nature of the foreign 12 tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign 13 government or the court or agency abroad to U.S. federal-court judicial assistance.” Intel, 542 14 U.S. at 264. “This factor focuses on whether the foreign tribunal is willing to consider the 15 information sought.” In re Varian Med. Sys., No. 16-mc-80048-MEJ, 2016 WL 1161568, at *4 16 (N.D. Cal. Mar. 24, 2016). 17 Toriyama has submitted a declaration from his attorney, who is admitted to practice in 18 Japan, that asserts that Japanese courts and criminal investigative authorities are receptive to 19 assistance in discovery by U.S. federal courts. Noguchi Decl. ¶¶ 18-19. The Court is not aware of 20 any directive from Japan against the use of Section 1782 evidence. See In re Jt. Stock Co. 21 Raiffeinsenbank, No. 16-mc-80203-MEJ, 2016 WL 6474224, at *5 (N.D. Cal. Nov. 2, 2016) 22 (“Absent this type of clear directive, however, a district court’s ruling should be informed by 23 section 1782’s overarching interest in ‘providing equitable and efficacious procedures for the 24 benefit of tribunals and litigants involved in litigation and international aspects.’” (quoting 25 Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d 1095, 1100 (2d Cir. 1995))). In fact, courts in this 26 district have previously granted Section 1782 discovery for use in proceedings in Japan. See In re 27 Med. Corp. H&S, No. 19-mc-80058-VKD, 2019 WL 1230440 (N.D. Cal. Mar. 15, 2019); In re 28 Med. Corp. Seishinkai, No. 21-mc-80160-SVK, 2021 WL 3514072 (N.D. Cal. Aug. 10, 2021). 5 1 Therefore, this factor weighs in favor of granting discovery. 2 United States District Court Northern District of California 3 3. There is no circumvention of foreign discovery procedures. The third factor asks a court to consider whether the applicant is aiming to circumvent the 4 foreign jurisdiction’s proof-gathering restrictions. Intel, 542 U.S. at 265. This factor will weigh 5 in favor of discovery if there is “nothing to suggest that [the applicant] is attempting to circumvent 6 foreign proof-gathering restrictions.” In re Google Inc., No. 14-mc-80333-DMR, 2014 WL 7 7146994, at *3 (N.D. Cal. Dec. 15, 2014). 8 Here, there is no reason to believe that Applicant is seeking to circumvent Japanese 9 evidence laws. Toriyama’s attorney stated as much in his declaration. Noguchi Decl. ¶ 20. 10 Absent any evidence to the contrary, this factor weighs in favor of granting discovery. 11 4. The request is not unduly burdensome or intrusive. 12 Finally, the last Intel factor asks a court to consider whether the proposed discovery is 13 overly burdensome or intrusive. 542 U.S. at 265. The subpoena seeks information from Google 14 about the anonymous individual. The subpoena is narrowly tailored to seeking the information 15 that is necessary to identify the identity of the putative defendant, and courts have found that 16 requests seeking similar information were not unduly intrusive or burdensome. Noguchi Decl. ¶¶ 17 21-25; see Med. Corp. H&S, 2019 WL 1230440, at *3-4; Med. Corp. Seishinkai, 2021 WL 18 3514072, at *4-5. To the extent Respondent asserts that any of the information sought by 19 Applicant is burdensome or confidential or proprietary, it can bring a motion to quash or the 20 parties can enter a protective order. See, e.g., In re Illumina Cambridge Ltd., No. 19-mc-80215- 21 WHO (TSH), 2019 WL 5811467, at *5 (N.D. Cal. Nov. 7, 2019) (offering similar options to 22 Respondents). 23 // 24 // 25 // 26 // 27 // 28 // 6 1 IV. ORDER For the foregoing reasons, IT IS HEREBY ORDERED that the Court GRANTS the ex 2 parte application authorizing discovery under 28 U.S.C. § 1782(a). 3 4 Dated: October 4, 2022 5 6 7 ______________________________________ BETH LABSON FREEMAN United States District Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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