Case Update (5 Sept 2023): United States v. Google; Court grants U.S.’s request for a subpoena and Commissioner to secure documents from Google
What family lawyer hasn’t wanted more information from Google in their quest for discovery? In this case, the Korean courts are requesting information from Google using some formal procedures available under the Hague Evidence Convention and 28 U.S.C. 1782.
The Korean proceeding in this case includes allegations that an unknown individual “conveyed false information regarding the plaintiff’s sexual history by means of a Google messenger account to [a] nonparty [X] less than ten days before the plaintiff’s wedding to X.” It is a suit for mental damage. The National Court Administration of the Republic of Korea issued a “Letter of Request” under the Hague Evidence Convention requesting judicial assistance to obtain certain evidence from Google in connection with the civil suit in its courts. Specifically, it sought “the personal information (Name, Gender, Phone Number, Date of Birth, etc.) of the individual(s) who signed up for your company and used [email address] between February 1, 2022 and February 28, 2022.” The Letter of Request was sent to the U.S. Central Authority under the Evidence Convention - the U.S. Department of Justice Office of International Judicial Assistance (OIJA), who then transmitted it to the U.S. Attorney for the Northern District of California, who then sent it to Google’s legal department to obtain the information voluntarily. Google responded by saying it would provide the information “only pursuant to a United States federal court subpoena” and so the AUSA requested that the court issue a subpoena pursuant to 28 U.S.C. 1782. The AUSA also requested appointment of a Commissioner to facilitate collection of this discovery.
For step one, the district court examined whether it could issue a subpoena. It found that the statutory requirements of 1782 were met: that Google was within its district, the discovery was to be used in a proceeding in a foreign tribunal, and that a foreign tribunal (or an interested party) made the request. Having met the statutory requirements, the court then explored whether to exercise its discretion and order the discovery. The district court found that Google was not a party to the proceedings in South Korea, and therefore those courts did not have direct authority to require Google’s compliance with the request. It also found that the foreign tribunal was receptive to help in obtaining the information. The request was not an attempt to circumvent the law in South Korea to secure information. The court considered whether the information requested tried to circumvent protections under U.S. law, specifically the first amendment, but “[f]rom the materials describing the substance of the dispute in the South Korean court, … the Court finds that it is reasonably probable that the person involved in making those statements anonymously is also a resident if not citizen of South Korea”, and therefore first amendment rights were not implicated. Several recent opinions failed to indicate that anonymous speakers are entitled to first amendment protections, and free-speech principles are not a determinative factor in a district court’s evaluation of a 1782 application. Finally, the information requested was narrowly tailored to specific information, and was not overly broad, unduly intrusive, or burdensome. The court found in favor of the United States in seeking the information.
For step two, the district court examined whether it could appoint a “Commissioner” and who that person should be and what poewrs they should have. The court examined 1782, which uses the word “person” when referring to that who should be appointed, instead of using the word Commissioner. The district court noted that courts routinely issue subpoenas without appointing a person to facilitate the collection of the information. So, the court also examined whether appointing this person was necessary. Such an appointment is more routinely found in cases where it is difficult to secure the discovery. The court opined that it would need to determine the scope of the person’s authority, and examine whether the person needed to have specific qualifications. The person should be capable of administering oaths and gathering information, and therefore familiar with the legal pre-requisites. The court concluded that because the evidence would be used in a civil law court, where evidence is routinely secured directly by the courts, then an AUSA was likely the most appropriate person. In addition, the court concluded that the person should be free from bias in the underlying matter. The court concluded that the person proposed by the United States would meet the qualifications and be an appropriate person to appoint and that their powers would include the ability to follow up and enforce the subpoena, to gather the documents, and then transmit them to the authorities in Korea.
Finally, in terms of the form of the subpoena, the district court provided some observations. First, the subpoena would need to indicate that documents are to be produced within the district (i.e., within 100 miles), recognizing that the Commissioner and Google could agree to an alternative production. Second, the court questioned whether Korea may prefer to receive the documents directly from a judicial officer, since Korea is a civil law jurisdiction. Finally, the court supported the subpoena including language that required service of the subpoena on the account holder and permitting them time to file a proper motion to quash.
