The Court’s ruling protects all interested persons by giving them the chance to challenge the subpoena

In re Ex Parte in re Team Co., No. 22-mc-80183-VKD, 2022 U.S. Dist. LEXIS 161444, at *2-4 (N.D. Cal. Sep. 7, 2022)

Team Co seeks to obtain the information regarding the identity of a Google user who posted a negative review in order to introduce a civil proceeding in Japan against him or her. The Court recognized that the user must be given a opportunity to have his or her day in court before Google was obliged to reveal his or her real identity. Indeed, Google and the user do not share the same interest. Therefore, the user must be given a chance to file a motion to quash the subpoena served by Team Co to Google for documents revealing his or her real identity. 

  1. Background

Team Co, a Japanese corporation, intends to file a lawsuit in Japan asserting claims for violations of Articles 709 and 710 of the Japanese Civil Code against a Google user. This user posted a Google negative review about Team Co. However, Team Co. does not have the true user identity, but only his display name, “SK.” Therefore, Team Co introduced a 1782(a) petition to obtain permission to serve a subpoena on Google seeking the following documents, which it says will allow it to identify SK:

1. ALL DOCUMENTS showing the following information ever registered with ACCOUNT 1:

  1. names;
  2. physical, billing, shipping, or ALL other addresses;
  3. recovery, authentication, or ALL other e-mail addresses;
  4. recovery, authentication, or ALL other telephone numbers;
  5. ALL names and addresses of ALL credit cards registered to ACCOUNT 1 (but not the credit card number, expiration date, or card validation code); and,
  6. ALL names, addresses, e-mail addresses, telephone numbers, and names of the payment methods (such as PayPal), for ALL non-credit card payment methods registered to ACCOUNT 1.

2. ALL DOCUMENTS showing the following information as of the date that ACCOUNT 1 was created, and for the three-month period immediately preceding July 20, 2022 and until the date that you respond to this request: ALL access log (dates, times, and IP addresses) of ACCOUNT 1.

3. ALL DOCUMENTS showing the following information ever registered with ALL Google Ads accounts or ALL other accounts that are controlled by you that ACCOUNT 1 has ever been used to login with (the « OTHER ACCOUNTS »):

  1. names;
  2. physical, billing, shipping, or any other addresses;
  3. recovery, authentication, or any other e-mail addresses;
  4. recovery, authentication, or any other telephone numbers;
  5. ALL names and addresses of ALL credit cards registered to ALL of the OTHER ACCOUNTS (but not the credit card number, expiration date, or card validation code);
  6. ALL names, addresses, e-mail addresses, telephone numbers, and names of the payment methods (such as PayPal), for ALL non-credit card payment methods registered to ALL of the OTHER ACCOUNTS; and,
  7. the type of ALL of the OTHER ACCOUNTS (such as a Google Ads account).

4. ALL DOCUMENTS showing the following information as of the date that ALL of the OTHER ACCOUNTS were created, and for the three-month period immediately preceding July 20, 2022 and until the date that you respond to this request: ALL access log (dates, times, and IP addresses) of ALL of the OTHER ACCOUNTS.

  1. Discussion

The court first analyzed whether the statutory requirements of 1782(a) were met. It reached the conclusion that it was the case because (i) the subpoena seeks discovery from Google, which has is its principal places of business in the Northern District of California, (ii) Team Co. requests this discovery for use in a civil action that it anticipates to be fillied in Japan as soon as it obtains the true identity of “SK”, and (iii) Team Co is an interested person because it will be the putative plaintiff in the contemplated civil action. 

Then, as always in a 1782(a) case, the Court considered the additional, non-exhaustive Intel factors, which are (i) whether the person from whom discovery is sought is a party to the foreign proceeding, (ii) whether the foreign tribunal is receptive to the U.S. judicial assistance, (iii) whether the request for discovery conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States, (iv) whether the discovery sought is unduly intrusive or burdensome. The Court found that all these factors weighted in favor of authorizing service of the subpoena, except that Team Co must modify the document requests in its subpoena to request only “documents sufficient to show” in place of “all documents showing”. 

Furthermore, the Magistrate Judge addressed the privacy interests of the Google account holder who posted the review by adopting procedural protections to ensure that any objections “SK” may have to disclosure of his or her information are addressed before disclosure is made. Therefore, she ordered that Team Co and Google to comply with the following requirements: 

  1. At the time of service of the revised subpoena, Team Co. must also serve a copy of this order on Google.
  1. Within 10 calendar days of service of each subpoena and this order, Google shall notify the account holders and account users within the scope of the subpoena that their identifying information is sought by Team Co., and shall serve a copy of this order on each such person.
  1. Google and/or any person whose identifying information is sought may, within 30 days from the date of the notice, file a motion in this Court contesting the subpoena (including a motion to quash or modify the subpoena).
  1. Alternatively, any person whose identifying information is sough may, within 21 days from the date of the notice, advice Google in writing of any objections he or she has to disclosure of the information and the bases for any such objections. Within 10 days of receipt of any such objections, Google shall so advise the Court.
  1. If any person contests the subpoena or objects to any portion of it, Google shall preserve, but not disclose, the information sought by the subpoena pending resolution of that contest or objection. 
  1. Conclusions

This ruling is a great example of how a Judge can adapt the process to protect interested parties’ interests. In this case, Google is a third party who will not be involved in the foreseeable civil dispute between Team Co. and “SK” in Japan. Therefore, Google has little interest in filing a motion to quash the subpoena. On the other hand, “SK” would avoid a judicial claim in Japan if Team Co. could not obtain his or her real identity. Therefore, “SK” has a legitimate interest in getting the subpoena quashed. “SK” must therefore have his or her day in court to protect his or her due process right, giving him or her the opportunity to make legal arguments against the transmission by Google of his or her real identity to Team Co. 

For this reason, the Court decided to protect “SK’s” interest by allowing him or her to file a motion to quash or modify the subpoena or to advise Google in writing of any objections before the transmission of his or her identity to Team Co.