In re Ex Parte Application of Yutaka Yamashita, No. 5:2023mc80305 - Document 5 (N.D. Cal. 2023)
Court Description: ORDER GRANTING 1 EX PARTE APPLICATION TO AUTHORIZE DISCOVERY FOR USE IN A FOREIGN PROCEEDING. Signed by Judge Beth Labson Freeman on 11/27/23. (blflc2, COURT STAFF) (Filed on 11/27/2023)
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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 YUTAKA YAMASHITA, Applicant. 10 ORDER GRANTING EX PARTE APPLICATION TO AUTHORIZE DISCOVERY FOR USE IN A FOREIGN PROCEEDING 11 [Re: ECF No. 1] 9 United States District Court Northern District of California Case No. 23-mc-80305-BLF 12 On November 23, 2023, Applicant Yutaka Yamashita filed an ex parte application 13 pursuant to 28 U.S.C. § 1782 for an order granting leave to obtain limited discovery from 14 Respondent Apple Inc. in connection with a potential legal action in Japan. See ECF No. 1 15 (“App.”). For the reasons set forth below, the Court GRANTS the application. 16 17 I. BACKGROUND Applicant is a resident of Japan that writes a blog on the Ameba blogging platform. ECF 18 19 No. 1-1 (“Yamashita Decl.”) ¶¶ 1, 4. An Anonymous Individual with a display name of “a” published a comment to Applicant’s blog post falsely accusing Applicant of being a drug addict 20 and for having a history of being arrested by the police. Id. ¶¶ 6, 8. Although the comment was 21 removed, at least 100 people had viewed the comment before it was removed. Id. ¶¶ 9–10. 22 Applicant alleges that the comment caused Applicant significant emotional and physical harm. Id. 23 ¶¶ 10–13. 24 Applicant seeks to file a civil lawsuit in Japan for violation of Japanese tort law, but the 25 laws of Japan do not permit lawsuits to be filed against anonymous persons. See id. ¶¶ 15, 19; 26 ECF No. 1-2 (“Noguchi Decl.”) ¶¶ 10, 16. Applicant has been unable to discern the true identity 27 of the Anonymous Individual, which Applicant needs to proceed with the contemplated civil 28 1 lawsuit. See Yamashita Decl. ¶ 14. However, Applicant was able to identify the IP address of the 2 Anonymous Individual and that the IP address is owned by Apple. See id. ¶ 7; Noguchi Decl. ¶ 7. 3 Applicant seeks discovery of personally identifying information (“PII”) for the 4 Anonymous Individual from Apple to determine who to name in the lawsuit. See App., Ex. A 5 (“Subpoena”). The Subpoena requests documents sufficient to show the names, physical 6 addresses, e-mail addresses, telephone numbers, credit cards, and payment methods associated 7 with the Anonymous Individual’s IP address and Apple accounts, as well as access log 8 information for the three-month period preceding November 23, 2023, through the date that Apple 9 responds to the Subpoena. See id. 1–2. Applicant filed an ex parte application asking this Court to authorize the serving of the 10 United States District Court Northern District of California 11 12 Subpoena on Respondent. See App. II. LEGAL STANDARD 13 Section 1782 provides, in relevant part: 14 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. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 28 U.S.C. § 1782(a). The statute’s purpose is “to provide federal-court assistance in the gathering evidence for use in foreign tribunals.” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 247 (2004). Section 1782 permits district courts to authorize discovery “where three general requirements are satisfied: (1) the person from whom the discovery is sought ‘resides or is found’ in the district of the district court where the application is made; (2) the discovery is ‘for use in a proceeding in a foreign or international tribunal’; and (3) the application is made by a foreign or international tribunal or ‘any interested person.’” Khrapunov v. Prosyankin, 931 F.3d 922, 925 (9th Cir. 2019) (quoting § 1782(a)). But “a district court is not required to grant a § 1782(a) discovery application simply 2 United States District Court Northern District of California 1 because it has the authority to do so.” Intel, 542 U.S. at 264. Instead, a district court has 2 discretion to authorize discovery under Section 1782. Id. at 260-61. In exercising this discretion, 3 a district court should consider the following four factors identified by the Supreme Court: (1) 4 whether the “person from whom discovery is sought is a participant in the foreign proceeding”; (2) 5 “the nature of the foreign tribunal, the character of the proceedings underway abroad, and the 6 receptivity of the foreign government or the court or agency abroad to U.S. federal court judicial 7 assistance”; (3) whether the request “conceals an attempt to circumvent foreign proof-gathering 8 restrictions or other policies of a foreign country or the United States”; and (4) whether the request 9 is “unduly intrusive or burdensome.” Id. at 264-65. In exercising its discretion, the district court 10 should consider the twin aims of the statute: “providing efficient assistance to participants in 11 international litigation and encouraging foreign countries by example to provide similar assistance 12 to our courts.” Id. at 252. Section 1782 applications are generally considered on an ex parte basis because “parties 13 14 will be given adequate notice of any discovery taken pursuant to the request and will then have the 15 opportunity to move to quash the discovery or to participate in it.” IPCom GMBH & Co. KG v. 16 Apple Inc., 61 F. Supp. 3d 919, 922 (N.D. Cal 2014) (quoting In re Republic of Ecuador, No. C- 17 10-80225 MISC CRB (EMC), 2010 WL 3702427, at *2 (N.D. Cal. Sept. 15, 2010)). 18 “Consequently, orders granting § 1782 applications typically only provide that discovery is 19 ‘authorized,’ and thus the opposing party may still raise objections and exercise its due process 20 rights by challenging the discovery after it is issued via a motion to quash, which mitigates 21 concerns regarding any unfairness of granting the application ex parte.” In re Varian Med. Sys. 22 Int’l AG, No. 16-mc-80048-MEJ, 2016 WL 1161568, at *2 (N.D. Cal. Mar. 24, 2016). 23 III. 24 25 DISCUSSION A. Statutory Requirements Applicant’s request satisfies the requirements of Section 1782. First, the statute requires 26 that the respondent be found in the district. A business entity is “found” in the judicial district 27 where it is incorporated or headquartered. Illumina Cambridge Ltd. v. Complete Genomics, Inc., 28 No. 19-mc-80215-WHO(TSH), 2020 WL 820327, at *3 (N.D. Cal. Feb. 19, 2020) (collecting 3 1 cases). Apple is headquartered in Cupertino, California. Noguchi Decl. ¶ 8, Ex. 1. That is within 2 this district, so this requirement is met. Second, the discovery must be for use in a proceeding in a foreign tribunal. For a 3 4 proceeding to meet this requirement, it need not be “pending” or “imminent”; it need only be 5 “within reasonable contemplation.” Intel, 542 U.S. at 259. Here, Applicant intends to file a civil 6 lawsuit in Japan, but must identify the Anonymous Individual to do so. See Yamashita Decl. 7 ¶¶ 15, 19; Noguchi Decl. ¶¶ 10, 16. The civil lawsuit in Japan is within reasonable contemplation, 8 so this requirement is met. Third, an application under Section 1782 must be brought by an “interested person.” A United States District Court Northern District of California 9 10 litigant in a foreign proceeding is an “interested person” for purposes of Section 1782. Intel, 542 11 U.S. at 256–57. As a putative plaintiff in a civil lawsuit, Applicant is an interested person. See 12 Yamashita Decl. ¶¶ 10, 16. 13 14 15 16 17 B. Discretionary Intel Factors The discretionary factors identified by the Supreme Court in Intel also weigh in favor of 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 18 obtaining discovery from entities who are not parties in the foreign tribunal. Intel, 542 U.S. at 19 264. “[N]onparticipants in the foreign proceeding may be outside the foreign tribunal’s 20 jurisdictional reach; hence, their evidence, available in the United States, may be unobtainable 21 absent § 1782(a) aid.” Id. Here, Apple will not be a party or participant in the Japan civil lawsuit; 22 the only other party would be the Anonymous Individual. Noguchi Decl. ¶ 18. This factor 23 therefore weighs in favor of granting the application. 24 ii. Japanese courts are receptive to U.S. judicial assistance. 25 The Supreme Court next requires a district court to consider “the nature of the foreign 26 tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign 27 government or the court or agency abroad to U.S. federal-court judicial assistance.” Intel, 542 28 U.S. at 264. “This factor focuses on whether the foreign tribunal is willing to consider the 4 United States District Court Northern District of California 1 information sought.” In re Varian Med. Sys., No. 16-mc-80048-MEJ, 2016 WL 1161568, at *4 2 (N.D. Cal. Mar. 24, 2016). 3 The Court is not aware of any directive from Japan against the use of Section 1782 4 evidence. See In re Jt. Stock Co. Raiffeinsenbank, No. 16-mc-80203-MEJ, 2016 WL 6474224, at 5 *5 (N.D. Cal. Nov. 2, 2016) (“Absent this type of clear directive, however, a district court’s ruling 6 should be informed by section 1782’s overarching interest in ‘providing equitable and efficacious 7 procedures for the benefit of tribunals and litigants involved in litigation and international 8 aspects.’” (quoting Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d 1095, 1100 (2d Cir. 1995))). And 9 Applicant’s attorney, who is licensed to practice law in Japan, stated that “[b]ased upon my 10 experience as a lawyer qualified to practice law in Japan, courts of Japan are receptive to 11 assistance in discovery by U.S. federal courts, including for discovery of PII of individuals 12 publishing anonymous online statements.” Noguchi Decl. ¶ 20. This factor weighs in favor of 13 granting discovery. 14 15 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 16 foreign jurisdiction’s proof-gathering restrictions. Intel, 542 U.S. at 265. This factor will weigh 17 in favor of discovery if there is “nothing to suggest that [the applicant] is attempting to circumvent 18 foreign proof-gathering restrictions.” In re Google Inc., No. 14-mc-80333-DMR, 2014 WL 19 7146994, at *3 (N.D. Cal. Dec. 15, 2014). 20 Here, there is no reason to believe that Applicant is seeking to circumvent Japanese 21 evidence laws. Applicant’s attorney confirmed that “Applicant is not attempting to circumvent 22 any foreign proof-gathering restrict ions or other policies of Japan or the United States.” Noguchi 23 Decl. ¶ 21. Absent any evidence to the contrary, this factor weighs in favor of granting discovery. 24 25 iv. The request is not unduly burdensome or intrusive. The last Intel factor asks a court to consider whether the proposed discovery is overly 26 burdensome or intrusive. 542 U.S. at 265. The Subpoena seeks information from Apple about the 27 Anonymous Individual. The Subpoena is narrowly tailored to seeking the information that is 28 necessary to identify the putative defendant, and courts have found that requests seeking similar 5 1 information were not unduly intrusive or burdensome. Noguchi Decl. ¶¶ 22–35; see, e.g., In re 2 Med. Corp. Seishinkai, No. 21-mc-80160-SVK, 2021 WL 3514072, at *4-5 (N.D. Cal. Aug. 10, 3 2021). To the extent Apple asserts that any of the information sought by Applicant is burdensome 4 or confidential or proprietary, it can bring a motion to quash or the parties can enter a protective 5 order. See, e.g., In re Illumina Cambridge Ltd., No. 19-mc-80215- WHO (TSH), 2019 WL 6 5811467, at *5 (N.D. Cal. Nov. 7, 2019) (offering similar options to Respondents). 7 IV. 8 9 10 ORDER For the foregoing reasons, IT IS HEREBY ORDERED that Applicant Yutaka Yamashita’s ex parte application for an order authorizing discovery for use in a foreign proceeding under 28 U.S.C. § 1782(a) is GRANTED. United States District Court Northern District of California 11 12 13 14 Dated: November 27, 2023 ______________________________________ BETH LABSON FREEMAN United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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