v. Roebers

Filing 6

ORDER GRANTING 4 Petitioner's Renewed Application for an Order to Conduct Discovery for Use in a Foreign Legal Proceeding pursuant to 28 U.S.C. section 1782. Signed by Magistrate Judge Laurel Beeler on 7/11/2012.(lblc2, COURT STAFF) (Filed on 7/11/2012)

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UNITED STATES DISTRICT COURT

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Northern District of California

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San Francisco Division
In the Matter of the Application of

No. C12-80145 MISC RS (LB)

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For the Northern District of California

UNITED STATES DISTRICT COURT

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KIMBERLY V. ROEBERS

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For an Order to Conduct Discovery for Use in
a Foreign Legal Proceeding Pursuant to 28
U.S.C. § 1782

ORDER GRANTING PETITIONER’S
RENEWED APPLICATION FOR AN
ORDER TO CONDUCT DISCOVERY
FOR USE IN A FOREIGN LEGAL
PROCEEDING PURSUANT TO 28
U.S.C. § 1782

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_____________________________________/
[Re: ECF No. 4]

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I. INTRODUCTION
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Petitioner Kimberly Roebers filed an ex parte application to take discovery pursuant to 28
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U.S.C. § 1782. That statute allows a district court to order a person residing or found within its
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district to produce documents or provide testimony for use in a foreign legal proceeding, unless the
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disclosure would violate a legal privilege. The petition was assigned to District Court Judge Richard
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Seeborg, who referred the matter to the undersigned for resolution. Upon consideration of Ms.
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Roebers’s renewed application and the relevant legal authority, the court GRANTS her application.
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II. BACKGROUND
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Ms. Roebers is a party in a divorce proceeding in Dublin, Ireland. Ex Parte Application for
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Order to Conduct Discovery, ECF No. 1 at 2. The divorce proceeding, Dr. Johannes Roebers v. Kim
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Roebers (née Knight), file no. 01125/2011, is pending before the Circuit Family Court of the County
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of Dubin, Ireland. Id.
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C 12-80145 MISC RS (LB)
ORDER

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Mr. Roeber filed an ex parte motion with the Circuit Court on or about February 8, 2012, in

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which he asked the Circuit Court for discovery into six months’ worth of Ms. Roeber’s private

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communications, including email messages, text messages, and other forms of communication. Id.

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Mr. Roeber’s affidavit laid out what he believed had transpired during Ms. Roeber’s sexual activities

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during their marriage and after they were separated. Id. at 3. Ms. Roeber alleges that the affidavit

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made it plain that Mr. Roeber and his hired investigator, Ms. De Benedittis, illegally accessed her

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private communications, as information contained in Ms. De Benedittis’ investigation report could

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not have been obtained through any method other than logging into a private profile on a website

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using Ms. Roeber’s personal login information. Id. at 3, 5-6. Ms. Roeber claims that after Mr.
Roeber filed his motion and affidavit, she discovered that he stole or made a copy of a document that

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contained all the information needed to access her private communications. Id. at 4.

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UNITED STATES DISTRICT COURT

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On July 6, 2012, Ms. Roeber filed a renewed application requesting authorization to conduct

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discovery pursuant to 28 U.S.C. § 1782. Renewed Ex Parte Application for an Order to Conduct

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Discovery, ECF No. 4 at 1. Specifically, Ms. Roeber seeks an order authorizing her to issue

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subpoenas to seven different companies allegedly in possession of information relating to user data

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in their systems, including the IP address from which a user’s email account or other information

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was accessed. Id. at 9, Ex. A. She attaches to her application, as Exhibit A, drafts of the subpoenas

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she wants the court to issue. Id., Ex. A. Essentially, she seeks three sets of documents from each

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recipient: (1) documents sufficient to identify who accessed her accounts; (2) document sufficient to

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identify the IP addresses that accessed her accounts; and (3) documents sufficient to identify what

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those persons did when they accessed her accounts. See id. Presumably, this information will tell

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Ms. Roebers whether Mr. Roebers (or his agent) accessed any of her accounts without her

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permission, as she suspects.

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III. LEGAL STANDARD
28 U.S.C. § 1782(a) provides, in pertinent 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 pursuant to a letter
rogatory issued, or request made, by a foreign or international tribunal or upon the
C 12-80145 MISC RS (LB)
ORDER

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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.

Advanced Micro Devices, Inc., 542 U.S. 241, 256 ( 2004). In order to apply for discovery pursuant

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to § 1782, a formal proceeding in the foreign jurisdiction need not be currently pending, or even

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imminent. Id. at 258- 59. Instead, all that is necessary is that a “dispositive ruling” by the foreign

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adjudicative body is “within reasonable contemplation.” Id. at 259 (holding that discovery was

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proper under § 1782 even though the applicant’s complaint against the opposing party was only in

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the investigative stage). An ex parte application is an acceptable method for seeking discovery

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pursuant to § 1782. See In re Letters Rogatory from Tokyo Dist., Tokyo, Japan, 539 F.2d 1216,

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1219 (9th Cir. 1976) (holding that the subpoenaed parties may raise objections and exercise their

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For the Northern District of California

A litigant in a foreign action qualifies as an “interested person” under § 1782. See Intel Corp. v.

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UNITED STATES DISTRICT COURT

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due process rights by bringing motions to quash the subpoenas).

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A district court has wide discretion to grant discovery under § 1782. Intel, 542 U.S. at 260- 61.

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In exercising its discretion, a district court should consider the following factors: (1) whether the

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“person from whom discovery is sought is a participant in the foreign proceeding”; (2) “the nature of

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the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the

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foreign government or the court or agency abroad to U.S. federal court judicial assistance”; (3)

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whether the request “conceals an attempt to circumvent foreign proof-gathering restrictions or other

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policies of a foreign country or the United States”; and (4) whether the request is “unduly intrusive

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or burdensome.” See id. at 264- 65.

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A district court’s discretion is to be exercised in view of the twin aims of § 1782: providing

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efficient assistance to participants in international litigation, and encouraging foreign countries by

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example to provide similar assistance to our courts. See Schmitz v. Bernstein Liebhard & Lifshitz,

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LLP, 376 F.3d 79, 84 (2004). There is no requirement that the party seeking discovery establish that

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the information sought would be discoverable under the governing law in the foreign proceeding or

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that United States law would allow discovery in an analogous domestic proceeding. See Intel, 542

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U.S. at 247, 261-63.

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IV. DISCUSSION
C 12-80145 MISC RS (LB)
ORDER

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A. Statutory Requirements
Ms. Roeber’s application satisfies the minimum requirements of § 1782: the subpoenaed parties

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reside in this district1; the requested discovery is for use in her divorce proceeding before the Circuit

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Court of Ireland, which clearly qualifies as a proceeding before a foreign tribunal; there is no

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question that Ms. Roeber is an “interested person” as she is a litigant in the proceeding; and the

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instant ex parte application is an acceptable method of requesting discovery under § 1782. See In re

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Letters Rogatory, 539 F.2d at 1219.
B. Exercise of the Court’s Discretion

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The court finds good cause to exercise its discretion to authorize the requested discovery. The

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first Intel factor is satisfied: Ms. Roeber is a participant in a foreign proceeding, as she is a litigant in

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a divorce proceeding before the Circuit Court of Ireland.

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For the Northern District of California

UNITED STATES DISTRICT COURT

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The second Intel factor also is satisfied. Ms. Roeber provided authorities showing the prior

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receptivity of Irish courts to discovery acquired with the assistance of American courts, and the

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Court has no reason to believe that the reception to the discovery requested here would differ in any

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significant manner. See, e.g., McKevitt v. Pallasch, 339 F.3d 530, 532, and In re Charter

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Communications, Inc.; 393 F.3d 771.

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With regard to the third Intel factor, the Court does not view Ms. Roeber’s request as an attempt

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to circumvent any foreign restrictions related to the discoverability of the requested information, as

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the information she seeks is related to her own personal accounts. Furthermore, Ms. Roeber

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provides authority to show that Irish litigants are permitted to initiate discovery of evidence under

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Irish procedure. See Circuit Court Rules, Order: 24, Rules 1-7, Order: 32, Rules 1-9.

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Finally, the fourth Intel factor also is satisfied. Internet service providers and operators of

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The seven subpoenas attached to Ms. Roeber’s application are addressed to: (1) Google
Inc., 1600 Ampitheatre Parkway, Mountain View, CA 94043; (2) Yahoo!, Inc., 701 First Avenue
Sunyvale, CA 94089; (3) Microsoft, Inc., 835 Market Street, Suite 700, San Francisco, CA 94103;
(4) Various, Inc., 220 Humboldt Court, Sunnyvale, CA 94089; (5) Apple, Inc., 1 Infinite Loop,
Cupertino, CA 95014; (6) NTT America, Inc., 1741 Technology Drive, Suite 350, San Jose, CA
955110-1318; (7) Softlayer Technologies, Inc., 3105 Alfred Street, Santa Clara, CA 95054. See
Renewed Ex Parte Application, ECF No. 4, Ex. A.
C 12-80145 MISC RS (LB)
ORDER

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communications systems are generally familiar with this type of discovery request. Ms. Roeber’s

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request does not appear to be unduly intrusive or burdensome. Should any of the subpoenaed

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entities believe that it is, they may raise the issue at that time.

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V. CONCLUSION

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Based on the foregoing, the court GRANTS Ms. Roeber’s renewed application and permits the

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issuing of the seven attached subpoenas.
IT IS SO ORDERED.
Dated: July 11, 2012
_______________________________
LAUREL BEELER
United States Magistrate Judge

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For the Northern District of California

UNITED STATES DISTRICT COURT

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C 12-80145 MISC RS (LB)
ORDER

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