ORDER GRANTING PETITIONER'S APPLICATION FOR AN ORDER TO CONDUCT DISCOVERY FOR USE IN A FOREIGN LEGAL PROCEEDING PURSUANT TO 28 U.S.C. § 1782
Re: ECF No. 1
LAUREL BEELER, Magistrate Judge.
Vickers Holding filed an ex parte application under 28 U.S.C. § 1782 to take discovery for its pending lawsuit in the Netherlands against the defendants there, Jossiv Kim and Angelina Kim, who allegedly defrauded Vickers of 2 million euros.
Vickers' lawsuit in the Netherlands seeks recovery of approximately 2 million euros that Vickers lent Mr. Kim for a joint venture; the claim is that Mr. Kim diverted the money for personal use, including use by family members such as his wife, Angelina Kim.
Vickers' counsel in the Netherlands is B.G. Baljet.
28 U.S.C. § 1782(a) provides:
A litigant in a foreign action qualifies as an "interested person" under § 1782. See Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 256 (2004). In order to apply for discovery pursuant to § 1782, a formal proceeding in the foreign jurisdiction need not be currently pending, or even imminent. Id. 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). An ex parte application is an acceptable method for seeking discovery pursuant to § 1782. See In re Letters Rogatory from Tokyo Dist., Tokyo, Japan, 539 F.2d 1216, 1219 (9th Cir. 1976) (holding that the subpoenaed parties may raise objections and exercise their due-process rights by moving to quash the subpoenas).
A district court has wide discretion to grant or deny discovery under § 1782. Intel, 542 U.S. at 260-61. In exercising its discretion, a district court should consider the following factors: (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 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 264-65.
A district court's discretion is to be exercised in view of the twin aims of § 1782: "providing efficient means of assistance to participants in international litigation . . . and encouraging foreign countries by example to provide similar means of assistance to our courts." Schmitz v. Bernstein Liebhard & Lifshitz, LLP, 376 F.3d 79, 84 (2004). There is no requirement that the party seeking discovery establish that the information sought would be discoverable under the governing law in the foreign proceeding or that United States law would allow discovery in an analogous domestic proceeding. See Intel, 542 U.S. at 247, 261-63.
The court grants the discovery.
1. Statutory Requirements
The application satisfies the statutory requirements of § 1782. Wells Fargo is in the Northern District of California; the discovery sought is "for use" in the Netherlands lawsuit; and Vickers is an "interested person" in those proceedings.
2. Intel Factors
The discretionary Intel factors also support granting the application.
Intel Factor: Participant in a Foreign Proceeding.
The first Intel factor asks whether the "person from whom discovery sought is a participant in the foreign proceeding." 542 U.S. at 264. If the person is a participant, "the need for § 1782(a) aid generally is not as apparent as it ordinarily is when evidence is sought from a nonparticipant in the matter arising abroad" because "[a] foreign tribunal has jurisdiction over those appearing before it, and can itself order them to produce evidence." Id. "In contrast, nonparticipants in the foreign proceeding may be outside the foreign tribunal's jurisdictional reach; hence, their evidence, unavailable in the United States, may be unobtainable absent § 1782(a) aid." Id.
Wells Fargo is not a participant. This factor weighs in favor of granting the application.
Intel Factor: The Foreign Proceedings
The second Intel factor requires the court to "take into account 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." 542 U.S. at 264.
In Intel, the Court "question[ed] whether foreign governments would be offended by a domestic prescription permitting, but not requiring, judicial assistance." Id. at 243-44.
Id. at 244.
There is no information that the Netherlands court would reject information obtained through § 1782 discovery; in this situation, courts "err on the side of permitting discovery." See In re Varian Med. Sys. Int'l AG, No. 16-mc-80048-MEJ, 2016 WL 1161568, at *4 (N.D. Cal. Mar. 24, 2016).
Intel Factor: Evasion of Foreign Proof-Gathering Restrictions
The third Intel factor considers whether the request "conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States." 542 U.S. at 264-65. There is no evidence of this on this record.
Intel Factor: The Discovery Is Not Unduly Burdensome
The fourth Intel factor is whether the request is "unduly intrusive or burdensome." 542 U.S. at 265. At least conceptually, it is not, because it is direct evidence of diversion of funds that are the subject of the Netherlands case. After Vickers serves the discovery, it must confer with Wells Fargo's counsel to address burden issues and must comply with the procedures for resolving discovery disputes in the undersigned's standing order, which is attached.
The court grants the application for discovery. Vickers may serve the subpoena with a return date of 30 days from the date of service.
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SANFAANCISCO DIVISION
STANDING ORDER FOR UNITED STATES MAGISTRATE JUDGE LAUREL BEELER (Effective March 15, 2017)
Parties must comply with the procedures in the Federal Rules of Civil and Criminal Procedure, the local rules, the general orders, this standing order, and the Northern District's general standing order for civil cases titled "Contents of Joint Case Management Statement." These rules and a summary of electronic filing requirements (including the procedures for emailing proposed orders to chambers) are available at
I. CALENDAR DATES AND SCHEDULING
Motions are heard each Thursday: civil motions at 9:30 a.m. and criminal motions at 10:30 a.m. Case-management conferences are every Thursday: criminal cases at 10:30 a.m. and civil cases at 11:00 a.m. Parties must notice motions under the local rules and need not reserve a hearing date in advance if the date is available on the court's calendar (click "Calendars" at
II. CHAMBERS COPIES
Under Civil Local Rule 5-1(b), parties must lodge a paper "Chambers" copy of any filing unless another format makes more sense (such as for spreadsheets, pictures, or exhibits that might be better lodged electronically). Paper copies must be printed on both sides and three-hole punched, and they must be the electronically filed copies with the PACER/ECF-generated header (with the case number, docket number, date, and ECF page number). Parties do not need to submit copies of certificates of service, certificates of interested entities or persons, consents or declinations to the court's jurisdiction, stipulations that do not require a court order (see Civil Local Rule 6-1), and notices of appearance or substitution of counsel. Please read Civil Local Rule 79-5 carefully regarding the requirements for filing documents under seal and providing copies.
III. CIVIL DISCOVERY
IV. CONSENT CASES
1. In cases that are assigned to Judge Beeler for all purposes, the parties must file their written consent or declination of consent to the assignment of a United States Magistrate Judge for all purposes as soon as possible. If a party files a dispositive motion (such as a motion to dismiss or a motion for remand), the moving party must file the consent or declination simultaneously with the motion, and the party opposing the motion must file the consent or declination simultaneously with the opposition.
2. The first joint case-management conference statement in a case must contain all of the information in the Northern District's standing order titled "Contents of Joint Case Management Statement." Subsequent statements for further case-management conferences must not repeat information contained in an earlier statement and instead should report only progress or changes since the last case-management conference and any new recommendations for case management.
V. SUMMARY-JUDGMENT MOTIONS
The parties may not file separate statements of undisputed facts. See Civil L. R. 56-2. Joint statements of undisputed facts are not required but are helpful. Any joint statement must include — for each undisputed fact — citations to admissible evidence. A joint statement generally must be filed with the opening brief, and the briefs should cite to that statement. A reasonable process for drafting a joint statement is as follows: 1) two weeks before the filing date, the moving party proposes its undisputed facts, and 2) one week later, the responding party replies and the parties meet and confer about any disagreements. For oppositions, a responding party may propose additional undisputed facts to the moving party within seven days after the motion is filed and ask for a response within two business days.