In Re Request for Subpoena

Filing 6

ORDER GRANTING APPLICATION TO ISSUE A SUBPOENA FOR THE PRODUCTION OF DOCUMENTS FOR USE IN A FOREIGN PROCEEDING re 1 Signed by Judge Paul S. Grewal on October 9, 2014 (psglc2, COURT STAFF) (Filed on 10/9/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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IN RE REQUEST FOR SUBPOENA BY
RYANAIR LIMITED
Applicant.

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Case No.: 5:14-mc-80270-BLF-PSG
ORDER GRANTING APPLICATION
TO ISSUE A SUBPOENA FOR THE
PRODUCTION OF DOCUMENTS
FOR USE IN A FOREIGN
PROCEEDING
(Re Docket No. 1)

Ryanair Limited has applied to this court for an order to obtain discovery for use in foreign
proceedings pursuant to 28 U.S.C. § 1782(a). Ryanair seeks an order authorizing a subpoena to

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Mountain View-based Google, Inc. and San Francisco-based Twitter, Inc. for documents to be used
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in connection with a lawsuit adjudicated in the Dublin Circuit Court in Ireland. Ryanair alleged

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that a report was published on Air-Scoop.com containing false information about Ryanair’s safety

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and maintenance record. Defendants Global Wings LLC, Air-Scoop.com and Joachim Kleinert—

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owner of Global Wings—failed to appear in the action, resulting in an entry of default judgment in

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favor of Ryanair. 1 Ryanair “seeks information concerning the whereabouts of Kleinert, so as to

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See Docket No. 1 at 1.
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Case No.: 5:14-mc-80270-BLF-PSG
ORDER GRANTING APPLICATION TO ISSUE A SUBPOENA FOR THE PRODUCTION OF
DOCUMENTS FOR USE IN A FOREIGN PROCEEDING

1

obtain enforcement of [the] judgment.” 2 Ryanair asserts that Google and Twitter have relevant

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information because Air-Scoop has a Gmail account and a Twitter handle, suggesting that the

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entities have access to electronically stored information than may reveal Kleinert’s whereabouts. 3

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I. LEGAL STANDARD

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“A district court may grant an application pursuant to 28 U.S.C. § 1782 where (1) the
person from whom the discovery is sought resides or is found in the district of the district court to

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which the application is made, (2) the discovery is for use in a proceeding before a foreign tribunal,
and (3) the application is made by a foreign or internal tribunal or any interested person.” 4

United States District Court
For the Northern District of California

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However, simply because a court has the authority under Section 1782 to grant an application does

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not mean that it is required to do so. 5 The Supreme Court has identified several factors that a court

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should take into consideration in ruling on a Section 1782 request:

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(1) whether the material sought is within the foreign tribunal’s jurisdictional reach
and thus accessible absent Section 1782 aid; (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 jurisdictional
assistance; (3) whether the Section 1782 request conceals an attempt to circumvent
foreign proof-gathering restrictions or other policies of a foreign country or the
United States; and (4) whether the subpoena contains unduly intrusive or
burdensome requests. 6

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Id. at 1-2.

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See id. at 3.

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28 U.S.C. § 1782(a); see also In re Republic of Ecuador, Case No. 3:10-80225-CRB-EMC,
2010 WL 3702427, at *2 (N.D. Cal. Sep. 15, 2010).

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See Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264 (2004).

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In re Republic of Ecuador, 2010 WL 3702427, at *2 (citing Intel, 542 U.S. at 264-65).

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Case No.: 5:14-mc-80270-BLF-PSG
ORDER GRANTING APPLICATION TO ISSUE A SUBPOENA FOR THE PRODUCTION OF
DOCUMENTS FOR USE IN A FOREIGN PROCEEDING

II. DISCUSSION

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A.

The court has reviewed Ryanair’s application and has preliminarily determined that the

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Authority to Issue Subpoena

statutory requirements have been satisfied. First, Google is located in Mountain View and Twitter
is located in San Francisco, which are both in this district. Second, Ryanair represents that the
discovery sought is for enforcement of a judgment issued by the Dublin Circuit Court in Ireland,

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which is undisputedly a “proceeding before a foreign or international tribunal” under Section
1782(a). 7 Finally, there can be no real dispute that Ryanair qualifies as an interested person

United States District Court
For the Northern District of California

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because it is the party in whose favor the Dublin Circuit Court entered judgment. 8

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B.

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Discretionary Factors
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Jurisdictional Reach of Foreign Tribunal

The Supreme Court has noted that,

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[w]hen the person from whom discovery is sought is a participant in the foreign
proceeding . . . , the need for § 1782(a) aid generally is not as apparent as it
ordinarily is when evidence is sought from a nonparticipant in the matter arising
abroad. A foreign tribunal has jurisdiction over those appearing before it, and can
itself order them to produce evidence. In contrast, nonparticipants in the foreign
proceeding may be outside the foreign tribunal’s jurisdictional reach; hence, their
evidence, available in the United States, may be unobtainable absent § 1782(a) aid. 9

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In the instant case, Google and Twitter are not parties in the foreign proceeding. Further, Google

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and Twitter are not company residents in Ireland and, the requested information therefore does not

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appear to be within the immediate reach of the Dublin Circuit Court. This factor weighs in
Ryanair’s favor.

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See Docket No. 1 at 1; 28 U.S.C. § 1782(a).

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See Intel, 542 U.S. at 256 (stating that an interested person under Section 1782 “plainly reaches
beyond the universe of persons designated ‘litigant,’” although there is no doubt that “litigants are
included among, and may be the most common example”).

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Id. at 264.
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Case No.: 5:14-mc-80270-BLF-PSG
ORDER GRANTING APPLICATION TO ISSUE A SUBPOENA FOR THE PRODUCTION OF
DOCUMENTS FOR USE IN A FOREIGN PROCEEDING

2.

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Nature and Receptivity of Foreign Tribunal

Under the second discretionary Intel factor, district courts are encouraged to “take into

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account the nature of the foreign tribunal, the character of the proceedings underway abroad, and

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

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judicial assistance.” 10 Ryanair argues that there is no authority suggesting the Irish government

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would be hostile to or otherwise reject discovery obtained through a Section 1782 subpoena. 11

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Ryanair further argues that the Dublin Court would be receptive to the evidence because of how
critical it is to enforce the court’s judgment against Global Wings. 12 This factor also weighs in

United States District Court
For the Northern District of California

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Ryanair’s favor.

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3.

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Although Section 1782 does not require the documents sought to be discoverable in the

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Attempt to Circumvent Foreign Proof-Gathering Restrictions and Policies

foreign courts, a district court may consider whether an applicant seeks in bad faith “to circumvent
foreign proof-gathering restrictions or other policies of a foreign country or the United States.” 13

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Here, Ryanair represents that the subpoena application is “a good-faith effort to secure relevant
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evidence that is beyond the jurisdiction of the Dublin Circuit Court.” 14 The court finds this factor
to be neutral.

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Id.

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See Docket No. 1 at 5.

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See id.

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Intel, 542 U.S. at 260-63, 265.

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See Docket No. 1 at 5.

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Case No.: 5:14-mc-80270-BLF-PSG
ORDER GRANTING APPLICATION TO ISSUE A SUBPOENA FOR THE PRODUCTION OF
DOCUMENTS FOR USE IN A FOREIGN PROCEEDING