In re: Colegio Americano de Guatemala

Filing 5

Order by Magistrate Judge Howard R. Lloyd granting 1 Ex Parte Application For Discovery in Aid of Foreign Litigation Pursuant to 28 U.S.C. Section 1782. (hrllc3S, COURT STAFF) (Filed on 12/16/2016)

E-filed 12/16/2016

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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In re Ex Parte Application of:
COLEGIO AMERICANO DE
GUATEMALA.
Applicant.

Case No.16-mc-80261-HRL
ORDER GRANTING APPLICATION
FOR DISCOVERY IN AID OF
FOREIGN LITIGATION PURSUANT
TO 28 U.S.C. § 1782

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United States District Court
Northern District of California

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For an Order Pursuant to 28 U.S.C. § 1782
Granting Leave to Obtain Discovery For Use
in Foreign Proceedings.

Re: Dkt. No. 1

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Petitioner Colegio Americano de Guatemala (“Colegio”), also known as the American

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School of Guatemala, requests discovery in aid of a proceeding before a Guatemalan court
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pursuant to 28 U.S.C. Section 1782. Based on a prior investigation, the Colegio initiated an action
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against parents suspected of abusing a student in the home. Dkt. No. 2, Atkins Decl., at ¶ 3. The
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Colegio filed a denuncia, a “complaint which begins a criminal and civil investigation and
proceedings,” and a hearing is scheduled for January 9, 2017, to determine if the case will proceed

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as a criminal action. Id. The parents in this action hired a lawyer whom the Colegio asserts is
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known for using media campaigns and publicity in trying her cases. Id. at ¶ 4.
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On December 2, 2016, school personnel received an anonymous e-mail from a g-mail
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address accusing a teacher of making inappropriate statements to students, including the sender’s

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unnamed son. Id. at ¶ 5. The e-mail address contains the first name of the lawyer in the
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aforementioned proceeding, and so the Colegio is concerned that the e-mail is “the opening move

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in a campaign to derail the January 9, 2017[,] hearing and coerce the School to drop the child
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abuse complaint.” Id. at ¶ 6. The Colegio thus seeks an order from this court allowing the school

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to subpoena Google, Inc. (“Google”) for the subscriber information associated with the

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anonymous e-mail account.
LEGAL STANDARD

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Ex parte applications are appropriate for seeking discovery pursuant to Section 1782. Ex

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parte applications are common in this context and “are typically justified by the fact that the

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parties will be given adequate notice of any discovery taken pursuant to the request and will then

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have the opportunity to move to quash the discovery or to participate in it.” In re Republic of

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Ecuador, No. C-10-80225 MISC CRB (EMC), 2010 WL 370247, at *3 (N.D. Cal. Sept. 15, 2010)

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(quoting In re Letter of Request from Supreme Court, 138 F.R.D. 27, 32 n.6 (S.D.N.Y. 1991).

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

United States District Court
Northern District of California

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

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

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discovery is sought from a person residing in the judicial district in which the application is made;

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

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foreign or international tribunal or an ‘interested person.’” Id.; Intel Corp. v. Advanced Micro

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Devices, Inc., 542 U.S. 241, 246-47 (2004).

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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. In addition to the statutory

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requirements, the Supreme Court has counseled that the district court should consider the

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following discretionary factors: (1) whether “the person from whom discovery is sought is a

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participant in the foreign proceeding”; (2) “the nature of the foreign tribunal, the character of the

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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”; (3) whether the discovery request is “an

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attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or

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the United States”; and (4) whether the discovery requested is “unduly intrusive or burdensome.”

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Id. at 264-65.
DISCUSSION

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A. Statutory Requirements.
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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 a foreign proceeding. Though the

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proceeding is at an early stage, Section 1782 permits discovery even before formal accusation in a

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criminal proceeding. In Re Ex Parte Application of Societe d’Etude de Realisation et

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d’Exploitation pour le Traitement du Mais, No. C13-80261-MISC LHK (HRL), 2013 WL

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6141655, at *1 (N.D. Cal. Nov. 21, 2013) (citing Matter of Application of O2CNI Co., No. C13-

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80125, 2013 WL 4442288, at *6 (N.D. Cal. Aug. 15, 2013). Even if the e-mail were not related to

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the pending abuse action—and the court observes that the presence of the lawyer’s first name in

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the e-mail address is a slender reed upon which to base this connection—this Section 1782 factor
would be met because of the school’s investigation into misconduct by a teacher. See Govan

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United States District Court
Northern District of California

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Brown & Assocs. Ltd. v. Does 1 & 2, No. C 10-02704 PVT, 2010 WL 3076295 (N.D. Cal. Aug. 6,

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2010). And the Colegio is a litigant in the foreign proceeding, and, as such, is an interested

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person. In re Ex Parte Application of Societe d’Etude, 2013 WL 6141655, at *1.

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B. Discretionary Factors.
(1) Google is not a participant in the foreign proceeding, which weighs in favor of

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permitting the discovery. (2) The Colegio asserts that Guatemala is receptive to U.S. Court

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assistance pursuant to the Inter-American Convention on Letters Rogatory, art. 2(b), Jan. 30, 1975,

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1438 U.N.T.S. 283. (3) The Colegio further asserts that it is not seeking to circumvent foreign

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limitations on discovery, and the court has no reason to believe otherwise. Google is located in

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this district, and the Colegio cites a Google website suggesting that the company does not have an

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office in Guatemala. Finally, (4) the request is narrowly tailored, and seeks only the subscriber

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registration information for the account, “including but not limited to the name, creation date and

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place, IP address, e-mail address(es), and telephone number(s) associated with such registration,”

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as well as the IP addresses used by the account on the day the e-mail was sent, and the account’s

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recovery e-mail addresses and telephone numbers.

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These discretionary factors weigh in favor of allowing the requested discovery. As such,

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the Colegio’s application for discovery pursuant to Section 1782 is granted. The instant order is

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without prejudice to Google or another interested party to seek to quash the subpoena. In the
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event any discovery disputes arise, the parties shall comply with the undersigned’s Standing Order

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re: Civil Discovery Disputes, which, among other things, requires the submission of a joint

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discovery letter brief, rather than a noticed motion.

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IT IS SO ORDERED.
Dated: 12/16/2016

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HOWARD R. LLOYD
United States Magistrate Judge

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United States District Court
Northern District of California

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