In Re Letter Rogatory - Request for International Judicial Assistance from the Harju Country Court in Estonia Petition of Lyoness Eesi Ou, Civil Matter No. 2-16-599 for Information from Automatic Inc.

Filing 3

ORDER by Judge Maria-Elena James granting 1 Motion for International Judicial Assistance. (mejlc3, COURT STAFF) (Filed on 4/24/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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IN RE LETTER ROGATORY – REQUEST
FOR INTERNATIONAL JUDICIAL
ASSISTANCE FROM THE HARJU
COUNTRY COURT IN ESTONIA
PETITION OF LYONESS EESI OÜ, CIVIL
MATTER NO. 2-16-599

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Case No. 17-mc-80044-MEJ
ORDER GRANTING PETITION
Re: Dkt. No. 1

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FOR INFORMATION FROM
AUTOMATIC INC.

United States District Court
Northern District of California

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INTRODUCTION

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Petitioner United States of America (“Petitioner”), on behalf of the Harju County Court in

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Estonia (the “Estonia Court”), filed this ex parte Application pursuant to 28 U.S.C. § 1782. Appl.,

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Dkt. No. 1; Mem. in Support of Appl. (“Mem.”), Dkt. No. 1-1. Petitioner requests the issuance of

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an order authorizing it to obtain discovery from Automatic Inc. (“Automattic”)1 for the Estonia

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Court’s use in a foreign proceeding pursuant to 28 U.S.C. section 1782. See id. Having

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considered Petitioner’s papers, the record in this matter, and the relevant legal authority, the Court

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now issues the following Order.

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BACKGROUND

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The Estonia Court requests that the United States Attorney’s Office for the Northern

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District of California obtain information and documents from Automattic, a company located in

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San Francisco, California. Mem. at 1; Molinari Decl. ¶ 2, Dkt. No. 2; id., Ex. A (Request for Int’l

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Assistance), Dkt. No. 2-1. Automattic describes itself as “the people behind WordPress.com, . . .

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Petitioner’s Motion and the Declaration of Gioconda Molinari spell the respondent’s name as
“Automatic” but it is in fact spelled “Automattic.” See Molinari Decl., Ex. C (email from
Automattic). The Court adopts this spelling throughout the Order.

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[whose] common goal is to democratize publishing so that anyone with a story can tell it. . . .”2

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The Estonia Court seeks pre-trial discovery for use in a pending lawsuit brought by Lyoness Eesti

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OÜ (“Lyoness”) related to “incorrect factual allegations” published on a WordPress.com web

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page. Molinari Decl. ¶ 4 & Request for Int’l Assistance. Specifically, the Estonia Court seeks:

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(1) Information submitted at the moment of registration of the web
page https://petuskeem.wordpress.com, including the IP address
used upon registration, the username, given names and surnames,
dates of birth, e-mail address, and other information submitted
together with any information provided by later amendments; and

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(2) Information submitted upon adding and changing information on
the
web
addresses
https://petuskeem.wordpress.com,
https://petuskeem.wordpress.com/ulejaanud,
and
https://petuskeem.wordpress.com/lyoness-eesti/,
including
IP
addresses, usernames with dates, when these IP addresses and
usernames were used for changing the web pages, and the e-mail
address and other known information used by the person who added
the information on the web page.

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United States District Court
Northern District of California

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Molinari Decl. ¶ 3 & Request for Int’l Assistance.
By letter dated January 9, 2017, Petitioner requested Automattic voluntarily provide the

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requested information. Molinari Decl. ¶ 5. On January 17, 2017, Automattic informed Petitioner

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that it will not voluntarily provide the requested information, but will respond to a subpoena. Id. ¶

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6 & Ex. C (email from Wordpress).
On March 29, 2017, Petitioner filed the instant application. Petitioner also requests the

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Court appoint Assistant United States Attorney (“AUSA”) Gioconda Molinari as Commissioner

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and authorize her to obtain the requested information from Automattic.
LEGAL STANDARDS

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The purpose of Section 1782 is “to provide federal-court assistance in gathering evidence

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for use in foreign tribunals.” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 247

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(2004). Section 1782(a) provides in pertinent part:
The district court of the district in which a person resides or is found
may order him to . . . produce a document or other thing for use in a
proceeding in a foreign or international tribunal . . . . The order may
be made . . . upon the application of any interested person and may

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Automattic, About Us, https://automattic.com/about (last visited April 18, 2017).
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direct that the testimony or statement may be given, or the document
or other thing be produced, before a person appointed by the court.

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Before granting a Section 1782 application, courts first must confirm three statutory requirements

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are present: “(1) the discovery sought is from a person residing in the district court to which the

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application is made; (2) the discovery is for use in a proceeding before a foreign tribunal; and (3)

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the application is a foreign or international tribunal or an interested person.” In re Ex Parte Apple

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Inc. (“Apple”), 2012 WL 1570043, at *1 (N.D. Cal. May 2, 2012) (citation and internal quotation

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marks omitted). If the three requirements are present, and if discovery would not violate any

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legally-applicable privilege, “a district court is free to grant discovery in its discretion.” Schmitz v.

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Bernstein Liebhard & Lifshitz, LLP, 376 F.3d 79, 83-84 (2d Cir. 2004) (quotation omitted); 28

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United States District Court
Northern District of California

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U.S.C. § 1782(a).
If these statutory requirements are present, district courts consider four factors (the “Intel
factors”) in deciding whether to exercise their discretion:
(1) whether the “person from whom discovery is sought is a
participant in the foreign proceeding”; (2) “the nature of the foreign
tribunal, the character of the proceedings underway abroad, and the
receptivity of the foreign government, or the court or agency abroad
to U.S. federal-court judicial assistance”; (3) whether the discovery
request is an “attempt to circumvent proof-gathering restrictions or
other policies of a foreign country or the United States”; and (4)
whether the discovery is “unduly intrusive or burdensome.”

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Apple, 2012 WL 1570043, at *1 (quoting Intel, 542 U.S. at 264-65). Additionally, district courts

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must exercise their discretion with the “twin aims” of Section 1782 in mind: (1) “providing

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efficient assistance to participants in international litigation” and (2) “encouraging foreign

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countries by example to provide similar assistance to our courts.” Intel, 542 U.S. at 252 (internal

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quotation marks omitted).

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Although ex parte requests are generally disfavored because they disrupt the adversarial

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system, an ex parte application pursuant to Section 1782 is an acceptable method for requesting

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discovery because it provides procedural safeguards. See In re Letters Rogatory from Tokyo Dist.,

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Tokyo, Japan, 539 F.2d 1216, 1219 (9th Cir. 1976) (ex parte application acceptable because

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subpoenaed parties may raise objections and exercise their due process rights by motioning the

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court to quash the subpoenas); IPCom GMBH & Co. KG v. Apple Inc., 61 F. Supp. 3d 919, 922
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(N.D. Cal. 2014) (“It is common for parties to file ex parte applications, as parties will be given

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adequate notice of any discovery taken pursuant to the request and will then have the opportunity

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to move to quash the discovery or to participate in it.” (footnote and internal quotation marks

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omitted)); see In re Judicial Assistance Pursuant to U.S.C. Sec. 1782 ex rel. Macquarie Bank Ltd.

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(“Macquarie Bank”), 2014 WL 7706908 at *1 (D. Nev. June 4, 2014) (section “1782 petitions are

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frequently reviewed on an ex parte basis.”).
DISCUSSION

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A.

Statutory Requirements
Petitioner has established the Application meets the minimum statutory requirements of

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Section 1782. First, Automattic is headquartered in San Francisco, California (Molinari Decl., Ex.

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United States District Court
Northern District of California

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C), which is in this District. Second, the requested discovery is for use in a proceeding before a

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foreign tribunal, i.e., a lawsuit brought in the Estonia Court by Lyoness. Third, Lyoness is an

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“interested person” under Section 1782. See Intel, 542 U.S. at 256 (litigant in a foreign action

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qualifies as an interested person under Section 1782). This Court has the authority to compel

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discovery under Section 1782.

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B.

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Intel Discretionary Factors
While the Court has the authority to grant discovery under Section 1782, it retains

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discretion to decide what discovery, if any, should be permitted. See Intel, 542 U.S. at 264-65.

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The Court uses the four Intel factors to assist in this determination. “Although the Court

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individually analyzes each discretionary factor, they are not stand-alone categorical imperatives

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but rather involve overlapping considerations, which are considered collectively by the [C]ourt.”

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In re Appl. of Joint Stock Co. Raiffeinsenbank, 2016 WL 6474224, at *4 (N.D. Cal. Nov. 2, 2016)

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(internal quotation marks and citation omitted).

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1. Participant in the Foreign Proceeding

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The first Intel factor is whether “the person from whom discovery is sought is a participant

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in the foreign proceeding.” Intel, 542 U.S. at 264. “[W]hen the person from whom discovery is

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sought is a participant in the foreign proceeding . . . the need for § 1782(a) aid generally is not as

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apparent as it ordinarily is when evidence is sought from a nonparticipant in the matter arising
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abroad.” Id. Foreign tribunals can compel discovery from parties appearing before them,

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obviating the need for U.S. judicial assistance; however, entities or persons outside a foreign

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tribunal’s jurisdiction may possess evidence that is unobtainable absent Section 1782 aid. Id.

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The Court’s main concern is whether the evidence sought is within reach of the Estonia

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Court. Macquarie Bank, 2015 WL 3439103, at *6 (“[T]he key issue is whether the material is

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obtainable through the foreign proceeding.” (citation omitted)). This factor weighs in Petitioner’s

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favor: the record does not indicate Automattic is or will be a participant in the foreign

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proceedings, thus the evidence requested appears to be beyond the Estonia Court’s jurisdiction.

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2. Receptivity of Foreign Tribunal to Judicial Assistance
The second Intel factor contemplates “the nature of the foreign tribunal, the character of

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United States District Court
Northern District of California

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the proceedings underway abroad, and the receptivity of the foreign government, or the court or

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agency abroad to U.S. federal-court judicial assistance.” Intel, 542 U.S. at 264. Specifically, the

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issue is whether the foreign tribunal “is willing to consider the information sought.” Siemens AG

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v. W. Digital Corp., 2013 WL 5947973, at *3 (C.D. Cal. Nov. 4, 2013).

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This factor weighs in favor of Petitioner. On February 17, 2016, the Estonia Court

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requested information from Automattic to establish the identity of the individual(s) publishing

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information on specific web pages. Molinari Decl. ¶¶ 3-4. It is reasonable to believe the Estonia

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Court will consider the evidence sought given the Estonia Court requested it. See Request for Int’l

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Assistance.

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3. Attempt to Circumvent Foreign Proof-Gathering Restrictions

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The third Intel factor is whether the Section 1782 request is “an attempt to circumvent

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foreign proof-gathering limits or other policies of a foreign country or the United States.” Intel,

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542 U.S. at 264-65. Courts are not required to determine whether an applicant has exhausted its

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discovery attempts abroad; however, “a perception that an applicant has ‘side-stepped’ less-than-

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favorable discovery rules by resorting immediately to § 1782 can be a factor in a court’s analysis.”

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In re Cathode Ray Tube Antitrust Litig., 2013 WL 183944, at *3 (N.D. Cal. Jan. 17, 2013) (citing

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In re Appl. of Caratube Int’l Oil Co., 730 F. Supp. 2d 101, 107-08 (D.D.C. 2010)). Where a

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foreign court has requested the information there is a presumption that the application is not an
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attempt to circumvent foreign proof-gathering procedure. See In re Request for Int’l Judicial

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Assistance from the Nat’l Ct. Admin. of the Republic of Korea, 2015 WL 1064790, at *2 (N.D.

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Cal. Mar. 11, 2015) (“[T]he [foreign] court requested the information, so it is clear that it is

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receptive to this court’s assistance and that the request is not an attempt to circumvent foreign

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proof-gathering restrictions or other policies of a foreign country or the United States.”); see also

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Digital Shape Techs., Inc. v. Glassdoor, Inc. (“Digital Shape”), 2016 WL 6995881, at *3 (N.D.

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Cal. Nov. 30, 2016) (“[T]he [foreign] court’s order authorizing issuance of the subpoena

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demonstrates that the request is not an attempt to circumvent proof-gathering restrictions in either

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[the foreign jurisdiction] or the United States.”).

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There is no indication Lyoness seeks to bypass proper proof-gathering policy or procedure

United States District Court
Northern District of California

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in either Estonia or the United States; on the contrary, the Estonia Court issued a ruling on behalf

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of Lyoness requesting the assistance of the U.S. Department of Justice to obtain the information.

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Molinari Decl. ¶ 4; Request for Int’l Assistance. The Court finds that the third Intel factor weighs

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in favor of Petitioner.

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4. Undue Intrusion or Burden

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The final Intel factor asks whether the discovery requested is “unduly intrusive or

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burdensome.” Intel, 542 U.S. at 265. Discovery requests must be “proportional” considering “the

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issues at stake in the action . . . the importance of the discovery in resolving the issues, and

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whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R.

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Civ. P. 26(b)(1). “Requests are unduly intrusive and burdensome where they are not narrowly

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tailored, request confidential information and appear to be a broad ‘fishing expedition’ for

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irrelevant information.” Qualcomm, 162 F. Supp. 3d at 1043 (citation omitted). “[U]duly

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intrusive or burdensome requests may be rejected or trimmed.” Intel, 542 U.S. at 265.

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The Court finds the fourth Intel factor also weighs in favor of granting the Application.

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Petitioner requests specific private user information from Automattic in order to establish the

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proper parties to name as defendants in the Estonia Court proceeding. See Molinari Decl. ¶¶ 3-4.

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This information is necessary for resolving the issues at stake in the Estonia Court action.

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Petitioner has sufficiently confined its request to specific web addresses and user information for
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the user(s) who created and edited the web pages at issue in that lawsuit. Id. Although Petitioner

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seeks private user information, the Court cannot conclude at this time that the request is unduly

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intrusive or burdensome. See Digital Shape, 2016 WL 6995881, at *1 (granting discovery of

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online information removed from a website, along with the email and internet protocol (“IP”)

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addresses of the individuals who had submitted the removed information); see Assef v. Does 1-10,

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2015 WL 3430241, at *2 (N.D. Cal. May 28, 2015) (allowing discovery of documents sufficient to

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identify the names, addresses, telephone numbers, and IP and email addresses of individuals or

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entities who created, owned, and operated a blog); see also In re Roebers, 2012 WL 2862122, at

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*3 (N.D. Cal. July 11, 2012) (“Internet service providers and operators of communications
systems are generally familiar with this type of discovery request. [Petitioner’s] request does not

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United States District Court
Northern District of California

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appear to be unduly intrusive or burdensome. Should any of the subpoenaed entities believe that it

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is, they may raise the issue at that time.”). If Automattic seeks to challenge Petitioner’s subpoena,

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the Court’s ruling does not preclude it from bringing a motion to quash or modify.

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CONCLUSION

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In light of the foregoing analysis, the Court finds Petitioner establishes the statutory

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requirements of Section 1782 and that the discretionary Intel factors weigh in favor of granting the

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Application. Accordingly, the Court GRANTS Petitioner’s Application, appoints AUSA Molinari

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as Commissioner, and authorizes Molinari to obtain the requested information from Automattic.

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Petitioner shall serve the subpoena along with a copy of this Order and must include a return date

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at least 21 days after service.

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IT IS SO ORDERED.

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Dated: April 24, 2017
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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