In re ex parte Application of Jun MATSUMOTO, Plaintiff, v. Defendant Case No. 5:23-mc-80230-EJD United States District Court, N.D. California, San Jose Division Signed October 19, 2023 Davila, Edward J., United States District Judge ORDER GRANTING IN PART AND DENYING IN PART EX PARTE APPLICATION FOR ORDER PERMITTING DISCOVERY FOR USE IN A FOREIGN PROCEEDING Re: Dkt. No. 1 *1 Before the Court is Mr. Jun Matsumoto's (“Applicant”) ex parte application for an order pursuant to 28 U.S.C. § 1782 to authorize discovery for use in a foreign proceeding (“Application”). Application, ECF No. 1. Specifically, Applicant seeks documents from Google, LLC (“Google”) to identify the Google account users who had published allegedly defamatory reviews about Applicant's business. For the reasons stated below, the Application is GRANTED IN PART and DENIED IN PART. I. BACKGROUND Applicant has operated Ibaraki Motomachi Animal Hospital in Osaka, Japan since November 2017. Application 2. In or around March 2023, a review was posted on the Google Maps review page associated with Ibaraki Motomachi Animal Hospital by a Google account named “PON.” The review stated: “The hospital Director's telephone number significantly lacks common sense.” Id. In or around April 2023, a second review was posted on the Google Maps review page associated with Ibaraki Motomachi Animal Hospital by a Google account named “N T.” The review stated: “Not only did they not listen to what I had to say, it's horrible that they tell you wrong knowledge without hesitation by interrupting. I am never going back. Perhaps because they did not know that I'm a specialist as well, but you should have respect towards others no matter who they are. Let's listen to what others have to say.” Id. at 2–3. Applicant intends to bring a lawsuit in Japan against the persons who control the Google accounts that posted the two reviews alleging defamation and unlawful interference with business under Japanese law. Id. at 3. Applicant has hired an attorney in Japan and plans to bring the lawsuit as soon as Applicant ascertains their identities. Id. Specifically, Applicant requests a subpoena demanding that Google produce the following: 1. ALL DOCUMENTS sufficient to identify the user of the ACCOUNT 1 from the date Google Account was created to March 2023, including name, address (including postal code), e-mail address (including email address used for recovery or other purposes), and telephone number. 2. ALL DOCUMENTS sufficient to show the access log for the ACCOUNT 1 in March 2023, Japan Standard Time, including dates, times, IP addresses, and access type. 3. ALL DOCUMENTS sufficient to identify the user of the ACCOUNT 2 from the date Google Account was created to April 2023, including name, address (including postal code), e-mail address (including email address used for recovery or other purposes), and telephone number. 4. ALL DOCUMENTS sufficient to show the access log for the ACCOUNT 2 in April 2023, Japan Standard Time, including dates, times, IP addresses, and access type. Proposed Order 6–7, ECF No. 1-4. II. LEGAL STANDARD Title 28 United States Code § 1782(a) permits federal district courts to assist in gathering evidence for use in foreign proceedings. 28 U.S.C. § 1782(a); Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 247 (2004). The statute specifically authorizes a district court to order a person residing or found within the district “to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal.” 28 U.S.C. § 1782(a). The statute may be invoked where: (1) the discovery is sought from a person residing in the district of the court to which the application is made; (2) the discovery is for use in a proceeding before a foreign tribunal; and (3) the applicant is a foreign or international tribunal or an “interested person.” Intel Corp., 542 U.S. at 246; Khrapunov v. Prosyankin, 931 F.3d 922, 925 (9th Cir. 2019). *2 In addition to the mandatory statutory requirements, the district court retains discretion in determining whether to grant an application under § 1782(a) and may impose conditions it deems desirable. Intel Corp., 542 U.S. at 260–61. In Intel Corp., the Supreme Court created a non-exhaustive list of factors to consider in ruling on a § 1782(a) request, including (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 § 1782(a) 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 request is unduly intrusive or burdensome. Id. at 264–66. III. DISCUSSION A. Statutory Factors The Court finds that Applicant has satisfied the three statutory criteria of § 1782(a). First, the Application satisfies the residence requirement because Google is headquartered in and has its principal place of business in Mountain View, California. See, e.g., In re Todo, 2022 WL 4775893, at *2 (N.D. Cal. Sept. 30, 2022) (“In this district, business entities are ‘found’ where the business is incorporated, is headquartered, or where it has a principal place of business.”) (collecting cases); In re Med. Inc. Ass'n Takeuchi Dental Clinic, 2022 WL 10177653, at *2 (N.D. Cal. Oct. 17, 2022) (Google met residence requirement under 28 U.S.C. § 1782(a) due to headquarters and principal location in Mountain View). Therefore, Google resides or can be found in this district for the purposes of § 1782. Second, the Court finds that the discovery is sought for use in foreign proceedings. If a § 1782(a) request is made when there is no currently pending proceeding, such a proceeding must be “likely to occur” or is “within reasonable contemplation.” Intel Corp., 542 U.S. 241 at 258–59. Here, Applicant has hired counsel in Japan, who filed a declaration stating that Applicant intends to bring a lawsuit in Japan against the persons who control the accounts that posted the reviews as soon as they ascertain their identities. Decl. Yasuhiro Watanbe (“Wantanbe Decl.”) ¶¶ 1, 8, ECF No. 1-1. Third, Applicant is plainly an “interested person” in the contemplated foreign proceedings, as he would be the party bringing the defamation action. See Intel Corp., 542 U.S. at 256 (“No doubt litigants are included among, and may be the most common example of, the interested persons who may invoke § 1782”) (internal quotation marks and brackets omitted). Based on the foregoing, the Court finds that the Application satisfies the statutory factors to warrant an order pursuant to § 1782. B. Discretionary Intel Factors At this stage, the Court also finds that the discretionary Intel factors weigh in favor of granting Applicant's ex parte application in part. However, the Court finds that the fourth factor weighs against Applicant's specific request for documents pertaining to the users’ access logs and denies the Application as to that request. 1. Participation of Target in the Foreign Proceeding Turning to the first factor, which addresses whether the discovery target is or will be a participant in the foreign proceeding, the relevant inquiry is “whether the foreign tribunal has the authority to order an entity to produce the ... evidence.” In re Qualcomm Inc., 162 F. Supp. 3d 1029, 1039 (N.D. Cal. 2016); see also In re Varian Med. Sys. Int'l AG, 2016 WL 1161568, at *4 (N.D. Cal. Mar. 24, 2016) (“[T]he first Intel factor militates against allowing § 1782 discovery when the petitioner effectively seeks discovery from a participant in the foreign tribunal even though it is seeking discovery from a related, but technically distinct entity.”) (quotation marks and citation omitted). Here, Google would not be a party in the Japan proceedings, and therefore, that foreign tribunal would be unable to compel Google to produce discovery without the aid of § 1782. Application 5. “In these circumstances, the need for assistance pursuant to § 1782(a) is greater than it would be in circumstances where the foreign tribunal may order parties appearing before it or third parties within its jurisdiction to produce evidence.” In re Med. Corp. Takeuchi Dental Clinic, 2022 WL 1803373, at *3 (N.D. Cal. June 2, 2022) (citing Intel, 542 U.S. at 264). Accordingly, the first Intel factor weighs in favor of granting Applicant's request. 2. Receptivity of Foreign Tribunal to U.S. Judicial Assistance *3 The second Intel factor also favors granting the Application. “Courts conducting this analysis focus on the utility of the evidence sought and whether the foreign tribunal [or court] is likely to receive the evidence.” In re Qualcomm Inc., 162 F. Supp. 3d at 1040. “In the absence of authoritative proof that a foreign tribunal would reject evidence obtained with the aid of section 1782, courts tend to err on the side of permitting discovery.” In re Varian, 2016 WL 1161568, at *4 (internal quotation marks omitted). Here, the Court is unaware of any evidence that foreign courts in Japan would reject evidence obtained via § 1782, and Applicant cites to case law showing that Japanese courts have been receptive to the discovery assistance made by the U.S. courts. Application 6. Accordingly, given that there is no authoritative proof that a Japanese court would reject evidence obtained under § 1782, the second Intel factor weighs in favor of granting the Application. 3. Circumvention of Proof-Gathering Restrictions The third factor—whether an applicant seeks “to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States”—also favors granting the Application. Intel Corp., 542 U.S. at 265. “Courts have found that this factor weighs in favor of discovery where there is nothing to suggest that the applicant is attempting to circumvent foreign proof-gathering restrictions.” Med. Inc. Ass'n Smile Create, 547 F. Supp. 3d 894, 899 (N.D. Cal. 2021) (quotations and citations omitted). Here, Applicant's counsel has represented that he is “not aware of any restrictions on proof-gathering procedures under Japanese law that would limit the gathering of the evidence Applicant seeks.” Application 6. The Court does not find that there is any reason to doubt Applicant's counsel's representations. Accordingly, there is nothing to indicate that the third Intel factor should weigh against granting the Application. 4. Unduly Intrusive or Burdensome The fourth factor the Court must consider is whether the discovery sought is “unduly intrusive or burdensome.” Intel Corp., 542 U.S. at 265. Discovery requests may be intrusive or burdensome if “not narrowly tailored temporally, geographically or in their subject matter.” In re Qualcomm Inc., 162 F. Supp. 3d at 1044. Applicant's proposed subpoena seeks all documents sufficient to show the identity of the users of the two accounts, including the names and phone numbers registered to the account and IP addresses used to access the account. Proposed Order 6–7. The Court finds this request to be narrowly tailored to only seek documents “sufficient to show” the identifying information associated with the Google accounts in question, as opposed to a request seeking “all documents” relating to the account. See, e.g., In re Plan. & Dev. of Educ., Inc., 2022 WL 228307, at *5 (N.D. Cal. Jan. 26, 2022) (modifying § 1782 subpoena from seeking “all” identifiers to only seek information “sufficient to identify” the users). This limitation on the subpoena's scope suggests that the requested discovery is not “unduly intrusive or burdensome.” However, Applicant's proposed subpoena also seeks all documents to show the access log for the two accounts during the months the reviews were posted, including dates, times, IP addresses, and access types. Proposed Order 7. The Court finds that this request is unduly intrusive, as it does not serve the purpose of ascertaining the identity of the users of the two accounts. Applicant argues that it requires the access logs because “[i]t is highly unlikely that the perpetrators use their true name and address to create their Google account. Accordingly, the Subject Account holders probably did not use their true names and addresses. In that case, access logs are needed to identify the perpetrators.” Application 7. However, Applicant's argument assumes facts that the Court cannot accept at this time—apart from Applicant's assumptions, there are no facts to suggest that the accounts are registered under fake names and address. Rather, unnecessarily producing detailed documents revealing the users’ action log for an entire month would likely produce personal information entirely unrelated to this action. Given that Applicant has provided no concrete reason as to why this information is necessary for its action at this time, Applicant has not shown how this request is narrowly tailored to the subject matter of their action. *4 Therefore, the Court finds that the fourth Intel factor favors granting Applicant's request for all documents sufficient to show the identity of the users of the two accounts, including the names and phone numbers registered to the account and IP addresses used to access the account. However, the Court will exercise its discretion and DENY Applicant's request for all documents showing the access log for the two accounts during the months the reviews were posted, including dates, times, IP addresses. * * * Accordingly, the Court will exercise its discretion in granting the Application in part with certain limitations and requirements and without prejudice to any subsequent motion to quash or modify the subpoena. IV. CONCLUSION AND ORDER Based on the foregoing, the Court finds that Applicant's § 1782 Application satisfies the statutory factors, and that the discretionary Intel factors—at this stage, at least—also favor granting the Application as to the documents necessary to ascertain the users’ identity, but not as to the documents detailing the users’ access log. Accordingly, the § 1782 Application is GRANTED IN PART and DENIED IN PART. Applicant may serve the attached amended subpoena on Google, with the following requirements: 1. Applicant SHALL serve a copy of this Order on Google with the proposed subpoenas; 2. No later than 10 days after service of the subpoenas, Google SHALL NOTIFY all account users whose personal identifying information is affected by the subpoenas that their identifying information is being sought by Applicant and PROVIDE a copy of this Order to each account user; 3. Google SHALL use all means of communications associated with the Google accounts to contact and notify the affected individuals of the subpoenas; 4. Google and each account user whose information is sought may file—no later than 30 days after service or notice—a motion to quash or modify the subpoenas before this Court; 5. Any account user seeking to quash or modify the subpoenas may appear and proceed before this Court under a pseudonym; 6. If any party disputes the subpoenas, Google SHALL PRESERVE BUT NOT DISCLOSE the information sought by the subpoena pending resolution of that dispute; 7. This Order is WITHOUT PREJUDICE to any argument that may be raised in a motion to quash or modify the subpoena from Google or any account users. IT IS SO ORDERED. Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13) (c) Place of Compliance. (1) For a Trial, Hearing, or Deposition. A subpoena may command a person to attend a trial, hearing, or deposition only as follows: (A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or (B) within the state where the person resides, is employed, or regularly transacts business in person, if the person (i) is a party or a party's officer; or (ii) is commanded to attend a trial and would not incur substantial expense. (2) For Other Discovery. A subpoena may command: (A) production of documents, electronically stored information, or tangible things at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person; and (B) inspection of premises at the premises to be inspected. (d) Protecting a Person Subject to a Subpoena; Enforcement. (1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court for the district where compliance is required must enforce this duty and impose an appropriate sanction—which may include lost earnings and reasonable attorney's fees—on a party or attorney who fails to comply. *5 (2) Command to Produce Materials or Permit Inspection. (A) Appearance Not Required. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial. (B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing, or sampling any or all of the materials or to inspecting the premises—or to producing electronically stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply: (i) At any time, on notice to the commanded person, the serving party may move the court for the district where compliance is required for an order compelling production or inspection. (ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance. (3) Quashing or Modifying a Subpoena. (A) When Required. On timely motion, the court for the district where compliance is required must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden. (B) When Permitted. To protect a person subject to or affected by a subpoena, the court for the district where compliance is required may, on motion, quash or modify the subpoena if it requires: (i) disclosing a trade secret or other confidential research, development, or commercial information; or (ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party. (C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45(d)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party: (i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and (ii) ensures that the subpoenaed person will be reasonably compensated. (e) Duties in Responding to a Subpoena. (1) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information: (A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand. *6 (B) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. (C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form. (D) Inaccessible Electronically Stored Information. The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. (2) Claiming Privilege or Protection. (A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must: (i) expressly make the claim; and (ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim. (B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information under seal to the court for the district where compliance is required for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved. (g) Contempt. The court for the district where compliance is required—and also, after a motion is transferred, the issuing court—may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it. Attachment B I. Definitions 1. The word “DOCUMENT,” or any variant thereof, shall further include, but not be limited to, all written, typed, printed, recorded, tape-recorded, transcribed graphic or other reproduced matter or memorialization in any form pertaining to or describing, referring or relating to, directly or indirectly, in whole or in part, the matter that is the subject of a particular request including, but not limited to, originals and copies of letters, notes, notebooks, minutes, memoranda of telephone calls, correspondence, drafts, messages, telegrams, bank statements, bank and savings passbooks, leaflets, books, files, records, memoranda, conference reports, working papers, routing slips, diaries, calendars, appointment books, logbooks, tie sheets, proposals, quotations, memoranda of understanding, checks, canceled checks, statements of account, broker's records or statements, ledgers, billing registers, receipts, books of account, invoices, tape recordings, computer materials, working papers or memoranda, all notations on the foregoing and all copies thereof, as well as each summary, table, graphic, chart, compilation, report, study, tabulation, tally, diagram, drawing, map, illustration or statistical analysis, by whomever prepared, now or formerly in your actual or constructive possession, custody or control. Where a DOCUMENT has been prepared in several copies, or where additional copies have been made that are not identical or are no longer identical by reason of subsequent notation, highlighting or other modification of any kind whatsoever including, but not limited to, notations on the back of pages thereto, each nonidentical copy shall be considered a separate DOCUMENT. DOCUMENT shall also include electronically-stored information, which shall be produced in PDF format with Bates numbering and appropriate confidentiality designations, along with searchable metadata databases. *7 2. “ACCOUNT 1” means the Google Account on which the name is “PON” and which is identified by the following URL: https://www.google.com/maps/contrib/104423310689415936757/reviews/ 3. “ACCOUNT 2” means the Google Account on which the name is “N T” and which is identified by the following URL: https://www.google.com/maps/contrib/104316543479267229741/reviews/ II. Documents to be Produced: 1. ALL DOCUMENTS sufficient to identify the user of the ACCOUNT 1 from the date Google Account was created to March 2023, including name, address (including postal code), e-mail address (including email address used for recovery or other purposes), and telephone number. [Redacted] 3. ALL DOCUMENTS sufficient to identify the user of the ACCOUNT 2 from the date Google Account was created to April 2023, including name, address (including postal code), e-mail address (including email address used for recovery or other purposes), and telephone number.