Planet Aid, Inc. et al v. Reveal, Center for Investigative Reporting et al
Filing
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ORDER by Magistrate Judge Jacqueline Scott Corley granting 258 Motion for Issuance of Letters Rogatory. (ahm, COURT STAFF) (Filed on 2/24/2020)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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PLANET AID, INC., et al.,
Plaintiffs,
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Case No. 17-cv-03695-MMC (JSC)
v.
REVEAL, CENTER FOR
INVESTIGATIVE REPORTING, et al.,
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United States District Court
Northern District of California
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ORDER RE: PLAINTIFFS’ MOTION
FOR ISSUANCE OF LETTERS
ROGATORY
Defendants.
Re: Dkt. No. 258
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Now before the Court is Plaintiffs’ motion for issuance of letters rogatory pursuant to 28
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U.S.C. § 1781 and Federal Rules of Civil Procedure 26(b)(1) and 28(b). (Dkt. No. 258.)
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Plaintiffs’ proposed letters rogatory seek the production of documents from and depositions of
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Malawian citizens Harrison Longwe, Kandani Ngwira, Innocent Chitosi, Mbachi Munthali, and
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Marko Zebiah (collectively, “Foreign Declarants”). (Id. at 5; see also Dkt. Nos. 258-1- 258-5,
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Exs. A-E.) Defendants do not oppose Plaintiffs’ motion, although they “disagree with the
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statements and characterizations of fact in that [m]otion.” (Dkt. No. 262 at 1.) After consideration
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of Plaintiffs’ motion and Defendants’ statement of non-opposition, the Court vacates the hearing
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scheduled for March 5, 2020 and GRANTS Plaintiffs’ motion.
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LEGAL STANDARD
A letter rogatory is a formal request “from a court in which an action is pending[ ] to a
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foreign court to perform some judicial act.” 22 C.F.R. § 92.54; see also Intel Corp. v. Advanced
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Micro Devices, Inc., 542 U.S. 241, 247 n.1 (2004) (defining “letter rogatory” as “the request by a
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domestic court to a foreign court to take evidence from a certain witness”). The Federal Rules of
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Civil Procedure provide for the taking of depositions within foreign countries through letters
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rogatory. See Fed. R. Civ. P. 28(b)(1)(B) (“A deposition may be taken in a foreign country . . .
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under a letter of request, whether or not captioned a ‘letter rogatory’; . . . .”). In accordance with
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Rule 28(b)(1)(B), “[t]he Department of State has power, directly, or through suitable channels . . .
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to receive a letter rogatory issued, or request made, by a tribunal in the United States, to transmit it
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to the foreign or international tribunal, officer, or agency to whom it is addressed, and to receive
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and return it after execution.” 28 U.S.C. § 1781(a)(2).
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Courts have “inherent power to issue Letters Rogatory,” United States v. Staples, 256 F.2d
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290, 292 (9th Cir. 1958), and “[w]hether to issue such a letter is a matter of discretion,” Barnes &
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Noble, Inc. v. LSI Corp., 2012 WL 1808849, at *2 (N.D. Cal. May 17, 2012). “When determining
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whether to exercise its discretion, a court will generally not weigh the evidence sought from the
discovery request nor will it attempt to predict whether that information will actually be obtained.”
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United States District Court
Northern District of California
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Asis Internet Servs. v. Optin Global, Inc., No. C-05-05124 JCS, 2007 WL 1880369, at *3 (N.D.
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Cal. June 28, 2007). A court must instead apply “Rule 28(b) in light of the scope of discovery
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provided by the Federal Rules of Civil Procedure.” Id. (collecting cases). Under Rule 26(b),
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“[p]arties may obtain discovery regarding nonprivileged matter that is relevant to any party’s
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claim or defense.” Fed. R. Civ. P. 26(b)(1).
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DISCUSSION
Plaintiffs request the issuance of letters rogatory because Defendants’ pending motion to
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strike the first amended complaint, (Dkt. No. 107), includes declarations of “all the Foreign
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Declarants” in support of that motion, (Dkt. No. 258 at 7). Plaintiffs assert that they “have the
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right to examine that testimony, under oath, to ensure its validity and to inquire about issues
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necessary for a formal response to Defendants’ [m]otion [to strike].” (Id.) Plaintiffs further assert
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that the testimony sought from the Foreign Declarants is relevant to Plaintiffs’ claims of
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defamation and proportional to the needs of the case. The Court agrees on both scores.
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First, all Foreign Declarants submitted declarations in support of Defendants’ motion to
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strike the first amended complaint, indicating that they are witnesses with relevant information.
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(See Dkt. Nos. 108; 115; 116; 117; 119.) Second, the first amended complaint identifies Mr.
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Longwe, Mr. Ngwira, and Mr. Zebiah as alleged sources of specific defamatory statements at
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issue. (See Dkt. No. 78 at ¶¶ 30, 75, 85-88, 97, 130, 187-88, 204.) Thus, the testimony of the
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Foreign Declarants is relevant to Plaintiffs’ claims. See Fed. R. Civ. P. 26(b)(1). Finally, the
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requested discovery does not run afoul of Rule 26(b)(2)(C), which provides that courts “must limit
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the frequency or extent of discovery otherwise allowed” if the discovery sought “can be obtained
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from some other source that is more convenient, less burdensome, or less expensive.” See Fed. R.
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Civ. P. 26(b)(2)(C). Here, there is no alternative source of the information sought.
CONCLUSION
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For the reasons set forth above, the Court GRANTS Plaintiffs’ motion for issuance of
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letters rogatory. The Court will sign and affix its seal to each of the letters rogatory submitted and
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return the letters with original signatures and seals to Plaintiffs’ counsel for forwarding to the
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United States Department of State.
United States District Court
Northern District of California
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This Order disposes of Docket No. 258.
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IT IS SO ORDERED.
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Dated: February 24, 2020
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JACQUELINE SCOTT CORLEY
United States Magistrate Judge
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