in re Ex Parte Application of Societe D 'Etude De Realisation et D 'Exploitation Pour Le Traitement du Mais

Filing 3

ORDER by Magistrate Judge Howard R. Lloyd granting 1 Ex Parte Application (hrllc1, COURT STAFF) (Filed on 11/21/2013)

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*E-Filed: November 21, 2013*

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

NOT FOR CITATION

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United States District Court

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SAN JOSE DIVISION

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In re Ex Parte Application of

No. C13-80261-MISC LHK (HRL)

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ORDER GRANTING EX PARTE
APPLICATION

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SOCIETE D’ETUDE DE REALISATION
ET D’EXPLOITATION POUR LE
TRAITEMENT DU MAIS

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Applicant.

[Re: Docket No. 1]
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____________________________________/
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Societe d’Etude de Realisation et d’Exploitation pour le Traitement du Mais (“Seretram”)
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seeks an order to obtain discovery from Google, Inc. for use in a foreign proceeding pursuant to 28
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U.S.C. § 1782. As the result of an alleged fraud, Seretram transferred over 17 million euros to a
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bank account held by Oasis Tree Limited (“Oasis”), a British corporation whose sole director,
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manager, and shareholder is Claes Sebastian Strahle. When opening the bank account, Strahle listed
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a Google-maintained email account as his contact information. Seretram seeks information related
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to Strahle’s “Gmail” account for use in criminal proceedings in France and the United Kingdom.
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LEGAL STANDARD
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Ex parte applications are appropriate for seeking discovery pursuant to § 1782. “[I]t is
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common for the process of presenting the request to a court and to obtain the order authorizing
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discovery to be conducted ex parte. [S]uch ex parte applications are typically justified by the fact
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that the parties will be given adequate notice of any discovery taken pursuant to the request and will
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then have the opportunity to move to quash the discovery or to participate in it.” In re Republic of

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Ecuador, 2010 WL 3702427, at *3 (N.D. Cal. Sept. 15, 2010) (quoting In re Letter of Request from

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Supreme Court, 138 F.R.D. 27, 32 n.6 (S.D.N.Y. 1991) (second alteration in original)).

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Pursuant to § 1782, a district court may order a person residing within its district to produce

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documents or testimony for use in a foreign legal proceeding, unless the disclosure would violate a

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legal privilege. 28 U.S.C. § 1782(a). This statute may be invoked where (1) the discovery is sought

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from a person residing in the judicial district in which the application is made; (2) the discovery is

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for use in a proceeding before a foreign tribunal; and (3) the applicant is a foreign or international

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tribunal or an “interested person.” Id.; Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241,

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246-47 (2004).

For the Northern District of California

United States District Court

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A district court is not required to grant the application, but instead retains discretion to

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determine what discovery, if any, should be permitted. Id. at 264. Thus, in addition to the statutory

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requirements, the Supreme Court has counseled that the following discretionary factors should

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considered: (1) whether “the person from whom discovery is sought is a participant in the foreign

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proceeding”; (2) “the nature of the foreign tribunal, the character of the proceedings underway

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abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-

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court judicial assistance”; (3) whether the discovery request is “an attempt to circumvent foreign

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proof-gathering restrictions or other policies of a foreign country or the United States”; and (4)

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whether the discovery requested is “unduly intrusive or burdensome.” Id. at 264-65.
DISCUSSION

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A. Statutory Requirements
Google resides in Mountain View, Santa Clara County, California, within the Northern

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District of California. The requested discovery is for use in two foreign criminal proceedings, one

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which is currently pending in France, and another anticipated criminal investigation in the United

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Kingdom. See Matter of Application of O2CNI Co., No. C13-80125, 2013 WL 4442288, at *6

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(N.D. Cal., Aug. 15, 2013) (“[S]ection 1782(a) covers criminal investigations conducted before

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formal accusation.”). As the alleged victim, Seretram is an “interested person.” Id. (“[Applicant] as

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a victim and complainant is an interested party to the [foreign] criminal investigation.”).

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Accordingly, the statutory factors of § 1782 are satisfied.

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B. Discretionary Factors
“[N]onparticipants in the foreign proceeding may be outside the foreign tribunal’s

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jurisdictional reach; hence, their evidence, available in the United States, may be unobtainable

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absent § 1782(a) aid.” Intel, at 264. Google is not a participant in the foreign proceedings, which

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weighs in Seretram’s favor.

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Seretram maintains that the requested discovery will help the authorities in the foreign

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criminal investigations. Moreover, it asserts that no policy in either France or the UK would cause

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them to reject U.S. court assistance, and the Court is unaware of any. See In re Application of Guy,

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No. M19-96, 2004 WL 1857580, at *2 (S.D.N.Y. Aug. 19, 2004) (allowing discovery where court

For the Northern District of California

United States District Court

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found no reason to suppose that the government of the United Kingdom would disfavor granting

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applicants relief under § 1782); In re Consellior SAS, No. 13-MC-34, 2013 WL 5517925, at *3 (D.

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Conn. Oct. 2, 2013) (finding grant of § 1782 application appropriate where no indication that French

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court would not be receptive to requested material).

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Seretram declares that it is not seeking to circumvent foreign limitations on discovery, and

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the Court has no reason to believe otherwise. The London High Court has already granted

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discovery related to the Oasis bank account, and it appears that information sought here would serve

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to supplement this discovery rather than undermine any discovery restrictions imposed by foreign

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tribunals.

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Finally, Seretram’s proposed discovery request is narrowly tailored so as not be unduly

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burdensome. The proposed subpoena seeks only the following information for a single Gmail

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account: (a) accountholder or subscriber information, including name, creation date, phone numbers

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or email addresses; (b) IP addresses from which the account was accessed, as well as time stamps

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indicating when the account was accessed; and (c) billing information. Such information seems

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likely to be easily accessible for production by Google.

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On the whole, the discretionary factors weigh in favor of allowing the requested discovery.

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Accordingly, Seretram’s application for discovery pursuant to 28 U.S.C. § 1782 is granted.

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However, in granting leave to serve the subpoena attached to its application, the Court does not

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intend to foreclose any valid objections that may be raised with respect to the information sought.

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IT IS SO ORDERED.
Dated: November 21, 2013
HOWARD R. LLOYD
UNITED STATES MAGISTRATE JUDGE

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For the Northern District of California

United States District Court

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C13-80261-MISC Notice will be electronically mailed to:

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Michael Lacovara [e-mail], [e-mail],
[e-mail]

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Counsel are responsible for distributing copies of this document to co-counsel who have not
registered for e-filing under the court’s CM/ECF program.

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For the Northern District of California

United States District Court

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