In Re Request for Subpoena

Filing 9

ORDER GRANTING APPLICATION TO ISSUE A SUBPOENA FOR THE PRODUCTION OF DOCUMENTS FOR USE IN A FOREIGN PROCEEDING by Magistrate Judge Paul Singh Grewal granting 7 (psglc2, COURT STAFF) (Filed on 10/31/2014)

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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. 7)

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 LinkedIn Corporation for documents to be used in connection with a lawsuit
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adjudicated in the Dublin Circuit Court in Ireland. Ryanair alleged that a report was published on

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Air-Scoop.com containing false information about Ryanair’s safety and maintenance record.

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Defendants Global Wings LLC, Air-Scoop.com and Joachim Kleinert—owner of Global Wings—

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failed to appear in the action, resulting in an entry of default judgment in favor of Ryanair. 1

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See Docket No. 7 at 2-3.
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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

Ryanair seeks “identifying information [LinkedIn] has for the use of the Air-Scoop profile,

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and for the two individuals who list their names as Antoine Viollet.” 2 Antoine Viollet is relevant

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because he is the “most viewed person on the Air Scoop profile”—suggesting a link between

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himself and the company. 3 Ryanair asserts that LinkedIn can provide the ISP addresses for

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postings by users. 4 “If the ISP address of one of the Antoine Viollet user profiles matches the ISP

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information Ryanair has obtained on Air-Scoop,” then Ryanair can ensure that it is in pursuit of the
proper individual. 5
I. LEGAL STANDARD

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“A district court may grant an application pursuant to 28 U.S.C. § 1782 where (1) the

United States District Court
For the Northern District of California

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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,

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and (3) the application is made by a foreign or internal tribunal or any interested person.” 6

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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. 7 The Supreme Court has identified several factors that a court
should take into consideration in ruling on a Section 1782 request:
(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

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Id. at 4.

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Id. at 3.

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See id. at 4.

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Id.

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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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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

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. 8

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II. DISCUSSION

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A.

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Authority to Issue Subpoena
The court has reviewed Ryanair’s application and has preliminarily determined that the

statutory requirements have been satisfied. First, LinkedIn is located in Mountain View, which is

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in this district. Second, Ryanair represents that the discovery sought is for enforcement of a
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judgment issued by the Dublin Circuit Court in Ireland, which is undisputedly a “proceeding before

United States District Court
For the Northern District of California

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a foreign or international tribunal” under Section 1782(a). 9 Finally, there can be no real dispute

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that Ryanair qualifies as an interested person because it is the party in whose favor the Dublin

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Circuit Court entered judgment. 10

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B.

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Discretionary Factors
1.

Jurisdictional Reach of Foreign Tribunal

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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. 11

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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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See Docket No. 7 at 6; 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

1

In the instant case, LinkedIn is not a party in the foreign proceeding. Further, LinkedIn is not a

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company resident in Ireland and, the requested information therefore does not appear to be within

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

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2.

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

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Nature and Receptivity of Foreign Tribunal

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
judicial assistance.” 12 Ryanair argues that there is no authority suggesting the Irish government

United States District Court
For the Northern District of California

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would be hostile to or otherwise reject discovery obtained through a Section 1782 subpoena. 13

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Ryanair further argues that the Dublin Court would be receptive to the evidence because of how

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critical it is to enforce the court’s judgment against Global Wings. 14 This factor also weighs in

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Ryanair’s favor.

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3.

Attempt to Circumvent Foreign Proof-Gathering Restrictions and Policies

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Although Section 1782 does not require the documents sought to be discoverable in the
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foreign courts, a district court may consider whether an applicant seeks in bad faith “to circumvent

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foreign proof-gathering restrictions or other policies of a foreign country or the United States.” 15

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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.” 16 The court finds this factor

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to be neutral.

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Id.

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See Docket No. 7 at 6.

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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. 7 at 6.

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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