In Re Application for Order Enforcing a Subpoena

Filing 46

Chief Judge Patti B. Saris: MEMORANDUM and ORDER entered. Based on a review of the record, I do not adopt the report and recommendation and DENY the motion to quash the subpoena. (Geraldino-Karasek, Clarilde)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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Applicants.
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In re Ex Parte Application
of Pro-Sys Consultants and
Neil Godfrey,

Civil Action No.
16-mc-91016-PBS

MEMORANDUM AND ORDER
August 5, 2016
Saris, C.J.
After a review of the record, the report and
recommendation, and the objections, the Court DENIES Microsoft
Corporation’s and Raymond Ozzie’s motion to quash. The Court
ALLOWS Microsoft’s assented-to motion to intervene and DENIES
the motion to vacate the order issued by Judge Talwani pursuant
to 28 U.S.C. § 1782. The Court relies on the opinion of the
magistrate judge to set forth the history of the litigation.
Because this discovery dispute has consumed eight months and
multiple briefs, and given that the proceedings in Canada have
begun, I set forth my reasons in brief.
As a preliminary matter, whether rulings on motions under
§ 1782 are considered dispositive—and therefore subject to de
novo review by the district court—or non-dispositive—and
therefore subject to a clear error standard—is an unsettled

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question. See Phillips v. Beierwaltes, 466 F.3d 1217, 1222 (10th
Cir. 2006) (declining to address “[w]hether the magistrate
judge’s order to compel discovery was dispositive or nondispositive in this unusual proceeding under 28 U.S.C. § 1782”);
Andover Healthcare, Inc. v. 3M Co., No. 14-MC-44 SRN/JJK, 2014
WL 4978476, at *3 (D. Minn. Oct. 6, 2014), aff’d, 817 F.3d 621
(8th Cir. 2016) (“[W]hile there is no controlling authority in
this Circuit, courts in other jurisdictions have applied a
‘clearly erroneous’ standard of review to magistrate judges’
rulings on petitions under 28 U.S.C. § 1782.”); Chevron Corp. v.
E-Tech Int’l, No. 10CV1146-IEG WMC, 2010 WL 3584520, at *3 (S.D.
Cal. Sept. 10, 2010) (“Courts disagree over whether a motion
under 28 U.S.C. § 1782 is a dispositive matter requiring the
magistrate judge to issue a report and recommendation.”). Noting
that “some courts have found that where a discovery issue is the
sole issue before a court, it is dispositive,” Magistrate Judge
Boal treated the motion as non-dispositive and issued a report
and recommendation. Docket No. 40 at 11.
The Court need not decide this threshold matter. After
scrutinizing the record, the Court has a “strong, unyielding
belief that a mistake has been made,” Phinney v. Wentworth
Douglas Hosp., 199 F.3d 1, 4 (1st Cir. 1999), particularly with
respect to the conclusion that a one-day deposition would be
unduly burdensome in light of the decade-long litigation.
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Accordingly, under either standard, the Court does not adopt the
report and recommendation.
Federal law authorizes district courts to order discovery
“for use in a proceeding in a foreign international tribunal.”
28 U.S.C. § 1782. In Intel Corp. v. Advanced Micro Devices,
Inc., 542 U.S. 241, 264-65 (2004), the Supreme Court set forth
discretionary factors a court should consider in ruling on an
application for § 1782 discovery: (1) whether the “person from
whom discovery is sought is a participant in the foreign
proceeding”; (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 judicial assistance”; (3) whether
the discovery request is an “attempt to circumvent foreign
proof-gathering restrictions or other policies of a foreign
country or the United States”; and (4) whether the discovery
requested is “unduly intrusive or burdensome” and should be
“rejected or trimmed.”
The magistrate judge properly found that the applicants
meet the statutory requirements of § 1782, but denied the
application on discretionary grounds. In my view—under either de
novo or clear error review—the balance of the Intel factors
weighs in the applicants’ favor.

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The first factor, whether the deponent is a participant in
the foreign litigation, weighs in favor of the applicants
because Mr. Ray Ozzie, a Massachusetts resident and retired
Chief Technology Officer and Chief Software Architect of
Microsoft, is not a litigant and therefore cannot be required to
give testimony in Canada. Accordingly, whether the applicants
acquire this evidence depends on the Court’s assistance.
The second factor focuses on the nature of the foreign
tribunal, the character of the foreign proceeding, and the
receptivity of the foreign court to the assistance of the U.S.
court. Here, the history of the litigation is probative. On
January 21, 2016, Judge Talwani initially denied without
prejudice the applicants’ request for an order pursuant to
§ 1782 for limited discovery: “Applicants have not shown that
they have been granted leave from the Supreme Court of British
Columbia or that they are not required to make such application.
Accordingly, applicants have not demonstrated that the Supreme
Court of British Columbia would be receptive to this court’s
assistance here.” Docket No. 4. Applicants returned to the
Supreme Court of British Columbia for a declaration regarding
Judge Talwani’s order. On March 3, 2016, Justice Myers of the
Supreme Court of British Columbia held: “There is nothing in our
Rules or the TMO requiring leave of this Court for the
plaintiffs to apply for the U.S.C. Rule 1782 deposition. As I
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have said, the real issue for this Court will be the
admissibility of the depositions.” Docket No. 7, Ex. 10 at 8.
Justice Myers gave conflicting signals. While he said that leave
to seek or conduct the § 1782 depositions was not required, he
also warned that the deposition testimony was “presumed to be
inadmissible.” Id. However, he was “not prepared to say their
admissibility into evidence is an impossibility.” Id. at 7.
Based on this order, Judge Talwani concluded the tribunal was
“receptive to the court’s assistance here.” Docket No. 11 at 1.
I agree that the best reading of this order is that the court
was receptive to additional discovery but noncommittal as to
admissibility.
With respect to the third factor, the Canadian court had
the opportunity to hold that the deposition circumvented the
Trial Management Order. It did not do so. Without a clearer
statement from that court, Microsoft has not demonstrated that
the applicants are engaged in an effort to thwart a prohibition
on foreign depositions in the Trial Management Order.
Lastly, I am unpersuaded that the discovery is unduly
intrusive or burdensome, or would unnecessarily prolong this
decade-long litigation. A one-day deposition about the subject
matter of emails and documents authored by Mr. Ozzie is not
burdensome, especially since applicants state there is no
accompanying document request. There is no evidence his
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testimony would be cumulative. Applicants seek only to depose
Mr. Ozzie about his personal knowledge and state of mind
concerning his own emails. It is unlikely that a current
Microsoft employee would provide the best evidence on this point
in a Rule 30(b)(6) deposition. Mr. Ozzie was not deposed in any
prior proceeding. In light of the fact that the proceedings are
apparently underway, the deposition shall be taken forthwith.
ORDER
Based on a review of the record, I do not adopt the report
and recommendation and DENY the motion to quash the subpoena.

/s/ PATTI B. SARIS
Patti B. Saris
Chief United States District Judge

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