In re Optus Administration Pty Limited

Filing 4

Docketed in error; please see instead Docket Number 5 . (hrllc1, COURT STAFF) (Filed on 2/24/2016) Modified on 2/24/2016 (hrllc1, COURT STAFF).

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E-Filed 2/24/16 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 8 IN RE OPTUS ADMINISTRATION PTY LIMITED, Applicant. 9 10 Case No. 16-mc-80013-HRL ORDER GRANTING APPLICATION FOR LEAVE TO OBTAIN DISCOVERY FOR USE IN FOREIGN PROCEEDINGS Re: Dkt. No. 1 United States District Court Northern District of California 11 12 Optus Administration Pty Ltd. (“Optus”) applies to this court under 28 U.S.C. § 1782 for 13 leave to obtain discovery from Sunnyvale-based Yahoo! Inc. (“Yahoo”) for use in foreign 14 proceedings. Optus sues former employee Elif Ketencioglu in the Supreme Court of New South 15 Wales for the unauthorized disclosure of confidential information and for breach of her implied 16 duty of fidelity to Optus. Dkt. No. 1 at 1-2. Optus also sues Elif’s husband, Sinan Ketencioglu, 17 seemingly for aiding in the unauthorized disclosure of confidential information. Optus filed the 18 case when its employees discovered Elif, just before leaving Optus in order to work for a rival 19 company, had sent confidential strategic information to her own Yahoo! email account and also to 20 the account of her husband. Id. 21 Defendants provided their Yahoo email account credentials to Optus in the course of the 22 litigation in Australia. Optus reviewed Defendants’ online mailboxes and concluded that pertinent 23 emails had been deleted and could not be accessed without assistance from Yahoo. Dkt. No. 1 at 24 3. Optus requested information from Yahoo7, an Australian corporate affiliate of Yahoo, and 25 Yahoo7 provided information for Sinan’s account. Yahoo7 asserted, however, that Elif subscribes 26 to email service through Yahoo rather than Yahoo7 and therefore Optus must seek information 27 about Elif’s email account from Yahoo. Dkt. No. 1 at 53. Optus therefore seeks leave to 28 subpoena Yahoo. Discussion 1 Optus requests judicial notice of supporting exhibits A-5 through A-9. A court “may take 3 judicial notice of the “public records of governmental entities” and of “undisputed information on 4 a private entity’s website.” In re Ex Parte Application of Jommi, 13-mc-80212-CRB-EDL, 2013 5 WL 6058201 at *2 n.1 (N.D. Cal. Nov. 15, 2013). A court “shall take judicial notice if requested 6 by a party and supplied with the necessary information.” Mullis v. United States Bank, 828 F.2d 7 1385, 1388 n.9 (9th Cir. 1987) (interpreting Fed. R. Evid. 201(c)). The exhibits offered by Optus 8 include court records from the Supreme Court of New South Wales, an Australian federal-court 9 opinion, details about Yahoo from the California Secretary of State’s site, and Yahoo’s privacy 10 policy for email users. Exhibits A-5 through A-8 are each judicially noticeable public records 11 United States District Court Northern District of California 2 from governmental entities. The court has also verified that the email privacy policy that Optus 12 downloaded and submitted, exhibit A-9, is the same email privacy policy that Yahoo presently 13 proffers on its website. 14 government records or else information from a private entity’s website that is not subject to 15 serious dispute. The court therefore grants the request for judicial notice of these exhibits. The court concludes the exhibits at issue are each either reliable 16 A district court has authority to grant an application under 28 U.S.C. § 1782 when the 17 applicant seeks discovery from someone who resides in the district, the requested discovery is for 18 use in a proceeding before a foreign tribunal, and the applicant is either a non-local tribunal or 19 “any interested person.” In re Republic of Ecuador, 10-mc-80225-CRB-EMC, 2010 WL 3702427 20 at *2 (N.D. Cal. Sep. 15, 2010). If the application satisfies these requirements, then the court 21 considers four discretionary factors to determine whether to grant the application: 22 26 (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. 27 Ecuador, supra (citing Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264 23 24 25 28 (2004)). 2 1 Optus’s application meets the initial statutory requirements: Optus seeks discovery from 2 Yahoo, which resides at its corporate headquarters in Sunnyvale; the requested discovery is for use 3 in litigation before the Supreme Court of New South Wales, an Australian tribunal; and Optus, as 4 a litigant in the foreign proceedings, qualifies as an “interested person.” Intel, 542 U.S. at 256 5 (litigants “may be the most common example” of an interested person). The court therefore has 6 authority to grant leave to obtain local discovery for the use of Optus in its Australian lawsuit. 7 The court turns to the discretionary factors. The jurisdictional-reach factor weighs in favor of granting the application if the applicant 9 seeks discovery from a person who is not a party to the foreign litigation and that person does not 10 reside within the foreign jurisdiction at issue. See Intel, supra at 264. Yahoo is not a party to 11 United States District Court Northern District of California 8 Optus’s case in New South Wales and Yahoo does not reside in New South Wales; this factor 12 therefore weighs in favor of granting Optus’s application. E.g., In re Ex Parte Application of 13 Global Energy Horizons Corp., 15-mc-80078-PSG, 2015 WL 1325758 at *2 (N.D. Cal. March 24, 14 2015). 15 The second factor—the nature of the foreign tribunal, the character of the foreign 16 proceedings, the receptivity of the foreign tribunal to assistance from U.S. federal courts—also 17 favors Optus. Here, the foreign tribunal is the highest court in the Australian state of New South 18 Wales. See The Supreme Court of New South Wales has 19 stated that Elif “does not oppose the issuing of” the subpoena Optus seeks and has ordered Elif to 20 “co-operate so far as is reasonably practicable in whatever other process is required . . . by a Court 21 in order to obtain the Relevant Documents.” Dkt. No. 1 at 106. The Supreme Court of New South 22 Wales is therefore receptive to the issuance of the subpoena requested by Optus as a means of 23 gathering relevant information. 24 Likewise, the circumvent-foreign-restrictions factor weighs in favor of Optus. 25 application is not an attempt to circumvent Australian restrictions on discovery; rather, as 26 discussed, the application requests leave to subpoena information that the Supreme Court of New 27 South Wales has directed the parties to procure. 28 The Finally, the fourth factor—whether the subpoena contains unduly intrusive or burdensome 3 1 requests—also favors Optus. The subpoena requests: (1) information about emails sent from 2 Elif’s Yahoo account between January 1, 2015 and January 1, 2016; (2) copies of sent emails 3 which forwarded an email initially received from an Optus email account or which had any 4 specifically listed confidential documents as attachments; and (3) copies of sent emails that 5 contain specific keywords. Dkt. No. 1 at 174-175. The court agrees with Optus that Yahoo, a 6 company that parses its stored email data in order to target advertisements and generate revenue, 7 shall not be unduly burdened by the subpoena. Dkt. No. 1 at 6-7; accord In re Roebers, 12-mc- 8 80145-RS-LB, 2012 WL 2862122 at *3 (N.D. Cal. July 11, 2012). 9 10 United States District Court Northern District of California 11 12 With each statutory requirement satisfied and with each discretionary factor weighing in favor of Optus, the court grants Optus leave to serve Yahoo with the proposed subpoena. IT IS SO ORDERED. Dated: 2/24/16 13 HOWARD R. LLOYD United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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