United States District Court, D. Arizona
In re Application of Ontario Principals' Council, Gordana Stefulic, Vivian Mavrou and Varla Abrams, Applicants.
STEVEN P. LOGAN, District Judge.
Ontario Principals' Council, Gordana Stefulic, Vivian Mavrou, and Varla Abrams (collectively "Applicants") have filed an ex parte application under 28 U.S.C. § 1782 for leave to conduct discovery in the District of Arizona for use in contemplated litigation in Ontario, Canada, and for an order protecting disclosure of such discovery. (Doc. 1.) For the reasons that follow, the Court will deny the application.
Applicants are comprised of a professional association of elementary and secondary school professionals, a member of that association, and school administrators in Ontario, Canada. Applicants allege that they have been the target of defamatory comments anonymously posted on Topix, LLC ("Topix") websites, accusing them of acts of misconduct and illegal activity, including sexual acts involving minor students. Applicants refute the allegations and seek to bring a defamation suit against the online posters in Canada.
Applicants have obtained certain internet protocol ("IP") addresses associated with Topix user postings. (Doc. 2 at 3.) Applicants assert that Giglinx, an internet service provider ("ISP") incorporated in Arizona, was linked to three of the user IP addresses disclosed: (1) "No communists allowed, " 126.96.36.199; (2) "ChrisCopyPasta, " 188.8.131.52; and (3) "snail, " 184.108.40.206. (Doc. 2 at 4, 15-17, 37-58.) Applicants move this Court to subpoena Giglinx to identify the subscribers of those IP addresses.
II. Legal Standard
Under 28 U.S.C. § 1782, a district court may order a person residing within its district to produce documents for use in a foreign legal proceeding. The statute provides in relevant part:
The district court of the district in which a person resides or is found may order him 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, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.
A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.
28 U.S.C. § 1782(a).
Although 18 U.S.C. § 1782 does not categorically require that the information sought would be discoverable under the law governing the foreign proceeding or analogous domestic litigation, a "district court is not required to grant a § 1782(a) discovery application simply because it has the authority to do so." Intel Corp., 542 U.S. at 263-4. In considering whether to grant a 28 U.S.C. § 1782 request, a district court considers several factors: (1) whether the "person from whom discovery is sought is a participant" in the foreign case; (2) the nature and character of the foreign proceeding, and whether the foreign court is receptive to judicial assistance from the United States; (3) whether the discovery request is an attempt to avoid foreign evidence-gathering restrictions; and (4) whether the discovery request is "unduly intrusive or burdensome." Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264-66 (2004).
A. Satisfaction of Statutory Requirements
Applicants meet the statutory requirements of 28 U.S.C. § 1782. Giglinx is located in Scottsdale, Arizona and Applicants are interested persons who intend to seek relief by commencing suit in Ontario, Canada. In order to apply for discovery pursuant to 28 U.S.C. § 1782, a formal proceeding in the foreign jurisdiction need not be currently pending, or even imminent, as is the case here. Intel Corp., 542 U.S. at 258-59. Instead, all that is necessary is that a "dispositive ruling" by the foreign adjudicative body is "within reasonable contemplation." Id. at 259 (holding that discovery was proper under § 1782 even though the applicant's complaint against the opposing party was only in the investigative stage). Further, an ex parte application is an acceptable method for seeking discovery pursuant to 28 U.S.C. § 1782. See In re Letters ...