In Re Ex Parte Application of Giorgio Armani S.P.A.

Filing 6

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 5/31/2017)

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E-filed 5/31/2017 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 9 In re Ex Parte Application of GIORGIO ARMANI S.P.A., Applicant, 10 United States District Court Northern District of California 11 Case No.17-mc-80067-HRL ORDER GRANTING APPLICATION FOR DISCOVERY IN AID OF FOREIGN LITIGATION PURSUANT TO 28 U.S.C. § 1782. For an Order Pursuant to 28 U.S.C. § 1782. Re: Dkt. No. 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner Giorgio Armani S.p.A. (“Armani”) requests discovery in aid of a proceeding before the High Court of Justice in England pursuant to 28 U.S.C. Section 1782. Dkt. No. 1. Following an investigation into a counterfeiting operation involving its products, Armani applied for and received an order from the English Court for the search and seizure of counterfeit products and related documents and electronic accounts from Universal Air Express Ltd. and Nasir Ali (“Ali”). Dkt. No. 3, Freeman Decl., ¶¶ 3-5, Ex. A. These related accounts included a Google Drive account associated with the e-mail address Id., at ¶ 5. During its search, Armani found that, in violation of the English Court’s order, (1) Ali had received an e-mail from tipping him off to the impending search, and (2) unknown users sought to delete information from the account. Id., at ¶¶ 6-11. Armani is unaware of the identities of the individuals associated with these accounts. Id., at ¶ 7. Armani seeks the assistance of this court so that it may serve proposed subpoenas on Google, Inc. Dkt. No. 1. The proposed subpoenas seek the production of information associated with the two e-mail accounts and related to the attempted deletions described above. Id., Ex. 1. LEGAL STANDARD 1 Ex parte applications are appropriate for seeking discovery pursuant to Section 1782. Ex 2 3 parte applications are common in this context and “are typically justified by the fact that the 4 parties will be given adequate notice of any discovery taken pursuant to the request and will then 5 have the opportunity to move to quash the discovery or to participate in it.” In re Republic of 6 Ecuador, No. C-10-80225 MISC CRB (EMC), 2010 WL 3702427, at *3 (N.D. Cal. Sept. 15, 7 2010) (quoting In re Letter of Request from Supreme Court, 138 F.R.D. 27, 32 n.6 (S.D.N.Y. 8 1991)). 9 Pursuant to Section 1782, a district court may order a person residing within its district to produce documents or testimony for use in a foreign legal proceeding, unless the disclosure would 11 United States District Court Northern District of California 10 violate a legal privilege. 28 U.S.C. § 1782(a). This statute may be invoked where (1) the 12 discovery is sought from a person residing in the judicial district in which the application is made; 13 (2) the discovery is for use in a proceeding before a foreign tribunal; and (3) the applicant is a 14 foreign or international tribunal or an ‘interested person.’” Id.; Intel Corp. v. Advanced Micro 15 Devices, Inc., 542 U.S. 241, 246-47 (2004). 16 A district court is not required to grant the application, but instead retains discretion to 17 determine what discovery, if any, should be permitted. Id. at 264. In addition to the statutory 18 requirements, the Supreme Court has counseled that the district court should consider the 19 following discretionary factors: (1) whether “the person from whom discovery is sought is a 20 participant in the foreign proceeding”; (2) “the nature of the foreign tribunal, the character of the 21 proceedings underway abroad, and the receptivity of the foreign government or the court or 22 agency abroad to U.S. federal-court judicial assistance”; (3) whether the discovery request is “an 23 attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or 24 the United States”; and (4) whether the discovery requested is “unduly intrusive or burdensome.” 25 Id. at 264-65. DISCUSSION 26 27 28 A. Statutory Requirements. Google resides in Mountain View, Santa Clara County, California, within the Northern 2 1 District of California. The requested discovery is for use in a foreign proceeding pending before 2 the High Court of England. Dkt. No. 3, Freeman Decl., ¶ 5. And Armani, as a litigant in the 3 foreign proceeding, is an interested person. Intel Corp., 542 U.S. at 256. 4 B. Discretionary Factors. 5 (1) Google is not a participant in the foreign proceeding, which weighs in favor of 6 permitting the discovery. (2) The English Court is likely to be receptive to U.S. Court assistance. 7 Royal Bank of Scotland Plc v. Hicks [2011] EWHC (Ch) 287 [94, 95, 96] (“The ability to apply 8 for disclosures under USC 1782 in aid of its proceedings in this country is a facility available to 9 any litigant.”). (3) Armani asserts that it is not seeking to circumvent foreign limitations on discovery, and the court has no reason to believe otherwise. Finally, (4) the request is narrowly 11 United States District Court Northern District of California 10 tailored, and seeks only non-content subscriber information and information related to specific 12 account activities during a limited time period. 13 These discretionary factors weigh in favor of allowing the requested discovery. As such, 14 Armani’s application for discovery pursuant to Section 1782 is GRANTED. The instant order is 15 without prejudice to Google or another interested party to seek to quash the subpoena. In the 16 event any discovery disputes arise, the parties shall comply with the undersigned’s Standing Order 17 re: Civil Discovery Disputes, which, among other things, requires the submission of a joint 18 discovery letter brief, rather than a noticed motion. 19 20 IT IS SO ORDERED. Dated: 5/31/2017 21 22 HOWARD R. LLOYD United States Magistrate Judge 23 24 25 26 27 28 3

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