Case 5:22-cv-08923-BLF Document 9 Filed 12/23/22 Page 1 of 7
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`In re Ex Parte Application of
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`Dr. Animesh Mishra,
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`Applicant.
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`Case No. 22-cv-08923-BLF
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`ORDER GRANTING EX PARTE
`APPLICATION TO AUTHORIZE
`FOREIGN DISCOVERY
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`[Re: ECF No. 1]
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`On December 16, 2022, Applicant Dr. Animesh Mishra filed an ex parte application
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`pursuant to 28 U.S.C. § 1782 (“Section 1782”) for an order granting leave to obtain limited
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`discovery from Google, LLC and RateMDs, Inc. (“Respondents”) in connection with a potential
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`legal action in Australia. See ECF No. 1-1 (“App.”). For the reasons set forth below, the Court
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`GRANTS the application.
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`I. BACKGROUND
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`Dr. Mishra is a gastroenterologist and hepatologist in Benowa, Queensland, Australia.
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`ECF No. 1-3 (“Mishra Decl.”) ¶ 2. He relies on his online public profile, including fora hosted by
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`Google and RateMDs, to grow his clientele. Id. His business has a profile on Google Maps, and
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`he has a profile on RateMDs. Id. ¶¶ 5, 7.
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`Dr. Mishra states that there have been several fake negative reviews posted about him on
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`Google and RateMDs. Mishra Decl. ¶¶ 9-13, Exs. B-E. He also states that certain individual(s)
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`have given a “thumbs-up” to his negative reviews and “flagged” his positive reviews to alert
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`moderators they should be removed. Id. The defamatory Google Reviews were posted by “D
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`Hartly” and “michael Fredrick.” Id. ¶¶ 12-13, Exs. D-E.
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`Dr. Mishra seeks to file a lawsuit in Australia against those individual(s) who posted the
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`Case 5:22-cv-08923-BLF Document 9 Filed 12/23/22 Page 2 of 7
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`reviews. Mishra Decl. ¶ 23. His Australian attorney states that the actions constitute defamation
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`under the common law of Queensland and the State of Queensland’s Defamation Act (2005) (the
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`“Act”). ECF No. 1-4 (“Steele Decl.”) ¶ 4. Pursuant to the Act, the attorney has prepared a
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`“concerns notice” as the first step towards initiating legal proceedings. Id. ¶ 5, Ex. D. He plans to
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`send those notice(s) to the appropriate person(s) upon learning their identities to initiate the civil
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`litigation. Id. ¶ 6.
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`Applicant is seeking to subpoena Google and RateMDs to learn the identity of the persons
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`who posted, interacted with, and viewed the identified reviews. ECF No. 1-2 (“Donlon Decl.”) ¶
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`1; see ECF Nos. 1-5 (Google subpoena), 1-6 (RateMDs subpoena). The subpoenas seek
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`documents or testimony about the identities of those who posted the defamatory reviews, those
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`who interacted with the defamatory reviews, and those who had access to the reviews. App. at 10.
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`The subpoenas seek “any information relating to the identity and contact information, including
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`names, user names and account information (from Google or RateMDs or from any social media
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`provider through which Google or RateMDs were accessed), email addresses, residential
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`addresses, postal code, telephone numbers, and computer/device IP addresses (including location
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`of the IP address), of ‘D Hartly,’ of ‘michael Fredrick,’ of those persons who made the anonymous
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`defamatory reviews, of those who had access to the defamatory reviews and therefore may have
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`read them, of those who gave a thumbs-up to the defamatory reviews, of those who took
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`screenshots of the reviews, and of those who flagged positive reviews since March 11, 2022.” Id.
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`at 10-11. They also seek “any other communications that Respondents have received from and
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`sent to the foregoing persons by any means, including email, texts, social media communications,
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`etc.” Id. at 11.
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`Applicant filed an ex parte application asking this court to authorize the serving of this
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`subpoena on Respondent. App.
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`II. LEGAL STANDARD
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`Section 1782 provides, in relevant part:
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`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
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`Case 5:22-cv-08923-BLF Document 9 Filed 12/23/22 Page 3 of 7
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`in a proceeding in a foreign or international tribunal, including criminal
`investigations conducted before formal accusation. The order may be made ... 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.... 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.
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`28 U.S.C. § 1782(a). The statute’s purpose is “to provide federal-court assistance in the gathering
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`evidence for use in foreign tribunals.” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241,
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`247 (2004). Section 1782 permits district courts to authorize discovery “where three general
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`requirements are satisfied: (1) the person from whom the discovery is sought ‘resides or is found’
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`in the district of the district court where the application is made; (2) the discovery is ‘for use in a
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`proceeding in a foreign or international tribunal’; and (3) the application is made by a foreign or
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`international tribunal or ‘any interested person.’” Khrapunov v. Prosyankin, 931 F.3d 922, 925
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`(9th Cir. 2019) (quoting § 1782(a)).
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`But “a district court is not required to grant a § 1782(a) discovery application simply
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`because it has the authority to do so.” Intel, 542 U.S. at 264. Instead, a district court has
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`discretion to authorize discovery under Section 1782. Id. at 260-61. In exercising this discretion,
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`a district court should consider the following four factors identified by the Supreme Court: (1)
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`whether the “person from whom discovery is sought is a participant in the foreign proceeding”; (2)
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`“the nature of the foreign tribunal, the character of the proceedings underway abroad, and the
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`receptivity of the foreign government or the court or agency abroad to U.S. federal court judicial
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`assistance”; (3) whether the request “conceals an attempt to circumvent foreign proof-gathering
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`restrictions or other policies of a foreign country or the United States”; and (4) whether the request
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`is “unduly intrusive or burdensome.” Id. at 264-65. In exercising its discretion, the district court
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`should consider the twin aims of the statute: “providing efficient assistance to participants in
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`international litigation and encouraging foreign countries by example to provide similar assistance
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`to our courts.” Id. at 252.
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`Section 1782 applications are generally considered on an ex parte basis because “parties
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`will be given adequate notice of any discovery taken pursuant to the request and will then have the
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`opportunity to move to quash the discovery or to participate in it.” IPCom GMBH & Co. KG v.
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`Case 5:22-cv-08923-BLF Document 9 Filed 12/23/22 Page 4 of 7
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`Apple Inc., 61 F. Supp. 3d 919, 922 (N.D. Cal 2014) (quoting In re Republic of Ecuador, No. C-
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`10-80225 MISC CRB (EMC), 2010 WL 3702427, at *2 (N.D. Cal. Sept. 15, 2010)).
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`“Consequently, orders granting § 1782 applications typically only provide that discovery is
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`‘authorized,’ and thus the opposing party may still raise objections and exercise its due process
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`rights by challenging the discovery after it is issued via a motion to quash, which mitigates
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`concerns regarding any unfairness of granting the application ex parte.” In re Varian Med. Sys.
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`Int’l AG, No. 16-mc-80048-MEJ, 2016 WL 1161568, at *2 (N.D. Cal. Mar. 24, 2016).
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`III. DISCUSSION
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`A.
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`Statutory Requirements
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`Applicant’s request satisfies the requirements of Section 1782. First, the statute requires
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`that the respondent be found in the district. A business entity is “found” in the judicial district
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`where it is incorporated or headquartered. Illumina Cambridge Ltd. v. Complete Genomics, Inc.,
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`No. 19-mc-80215-WHO(TSH), 2020 WL 820327, at *3 (N.D. Cal. Feb. 19, 2020) (collecting
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`cases). Google is headquartered in Mountain View, California. Donlon Decl. ¶¶ 3-4, Exs. A-B.
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`And RateMDs is incorporated in Santa Clara County, California. Donlon Decl. ¶¶ 10-11, Exs. G-
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`H. Both are within this district, so this requirement is met.
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`Second, the discovery must be for use in a proceeding in a foreign tribunal. For a
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`proceeding to meet this requirement, it need not be “pending” or “imminent”; it need only be
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`“within reasonable contemplation.” Intel, 542 U.S. at 259. Here, a civil lawsuit is within
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`reasonable contemplation because Dr. Mishra has declared that he intends to bring a lawsuit under
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`Australian law once he learns the identity of the putative defendant(s). Mishra Decl. ¶ 23. He has
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`already retained counsel for the purpose of doing so. Mishra Decl. ¶ 23; see also Steele Decl. ¶ 1,
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`Donlon Decl. ¶ 1. Further, his attorney has prepared a “concerns notice,” which is the first step
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`towards starting this civil litigation in Australia. Mishra Decl. ¶ 23; Steele Decl. ¶¶ 5-6.
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`Third, an application under Section 1782 must be brought by an “interested person.” A
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`litigant in a foreign proceeding is an “interested person” for purposes of Section 1782. Intel, 542
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`U.S. at 256-57. As the putative plaintiff in the civil lawsuit, Dr. Mishra is an interested person.
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`Mishra Decl. ¶ 23.
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`Case 5:22-cv-08923-BLF Document 9 Filed 12/23/22 Page 5 of 7
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`B. Discretionary Intel Factors
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`The discretionary factors identified by the Supreme Court in Intel also weigh in favor of
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`the Court granting the application.
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`1. Respondents are not participants in the foreign action.
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`The first factor, whether the respondent is a participant in the foreign action, supports
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`obtaining discovery from entities who are not parties in the foreign tribunal. Intel, 542 U.S. at
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`264. “[N]onparticipants in the foreign proceeding may be outside the foreign tribunal’s
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`jurisdictional reach; hence, their evidence, available in the United States, may be unobtainable
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`absent § 1782(a) aid.” Id. Here, Google and RateMDs will not be parties or participants in the
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`Australian civil lawsuit. Mishra Decl. ¶ 23; Steele Decl. ¶ 6. This factor therefore weighs in favor
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`of granting the application.
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`2. Australian courts are receptive to U.S. judicial assistance.
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`The Supreme Court next requires a district court to consider “the nature of the foreign
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`tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign
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`government or the court or agency abroad to U.S. federal-court judicial assistance.” Intel, 542
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`U.S. at 264. “This factor focuses on whether the foreign tribunal is willing to consider the
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`information sought.” In re Varian Med. Sys., No. 16-mc-80048-MEJ, 2016 WL 1161568, at *4
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`(N.D. Cal. Mar. 24, 2016).
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`Dr. Mishra’s Australian counsel submitted a declaration stating that Australian courts are
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`receptive to receiving discovery from the United States. Steele Decl. ¶ 7. Further, his counsel
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`submitted a copy of a decision of the Federal Court of Australia with similar facts to those here, in
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`which the court states that the plaintiff in that case obtained the IP address of the individual who
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`posted the defamatory review from RateMDs through a subpoena. Id. ¶¶ 9, Ex. G.
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`The Court is not aware of any directive from Australia against the use of Section 1782
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`evidence. See In re Jt. Stock Co. Raiffeinsenbank, No. 16-mc-80203-MEJ, 2016 WL 6474224, at
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`*5 (N.D. Cal. Nov. 2, 2016) (“Absent this type of clear directive, however, a district court’s ruling
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`should be informed by section 1782’s overarching interest in ‘providing equitable and efficacious
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`procedures for the benefit of tribunals and litigants involved in litigation and international
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`Case 5:22-cv-08923-BLF Document 9 Filed 12/23/22 Page 6 of 7
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`aspects.’” (quoting Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d 1095, 1100 (2d Cir. 1995))).
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`Finally, courts in this district have previously granted Section 1782 discovery for use in
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`proceedings in Australia. See, e.g., In re Ching Chung Taoist Ass’n of Hong Kong Ltd., No. 3:16-
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`mc-80157-LB, 2016 WL 5339803 (N.D. Cal. Sept. 23, 2016); Optiver Australia Pty. Ltd. & Anor.
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`v. Tibra Trading Pty. Ltd. & Ors., No. C 12-80242 EJD (PSG), 2013 WL 256771 (N.D. Cal. Jan.
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`23, 2013). Therefore, this factor weighs in favor of granting discovery.
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`3. There is no circumvention of foreign discovery procedures.
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`The third factor asks a court to consider whether the applicant is aiming to circumvent the
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`foreign jurisdiction’s proof-gathering restrictions. Intel, 542 U.S. at 265. This factor will weigh
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`in favor of discovery if there is “nothing to suggest that [the applicant] is attempting to circumvent
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`foreign proof-gathering restrictions.” In re Google Inc., No. 14-mc-80333-DMR, 2014 WL
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`7146994, at *3 (N.D. Cal. Dec. 15, 2014).
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`Here, there is no reason to believe that Applicant is seeking to circumvent Australian
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`evidence laws. See App. at 16. Absent any evidence to the contrary, this factor weighs in favor of
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`granting discovery.
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`4. The request is not unduly burdensome or intrusive.
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`Finally, the last Intel factor asks a court to consider whether the proposed discovery is
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`overly burdensome or intrusive. 542 U.S. at 265. The subpoenas seek information from Google
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`and RateMDs about the identities of the individuals who made and interacted with the defamatory
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`posts, as well the number of people who viewed the posts. See App. at 10-11; ECF Nos. 1-5, 1-6.
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`This information is necessary to determine the identity of the putative defendant(s) and the amount
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`of damages, respectively. App. at 16-17. To the extent Respondents assert that any of the
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`information sought by Applicant is burdensome or confidential or proprietary, it can bring a
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`motion to quash or the parties can enter a protective order. See, e.g., In re Illumina Cambridge
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`Ltd., No. 19-mc-80215-WHO (TSH), 2019 WL 5811467, at *5 (N.D. Cal. Nov. 7, 2019) (offering
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`similar options to Respondents).
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`IV. ORDER
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`For the foregoing reasons, IT IS HEREBY ORDERED that the Court GRANTS the ex
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`Case 5:22-cv-08923-BLF Document 9 Filed 12/23/22 Page 7 of 7
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`parte application authorizing discovery under 28 U.S.C. § 1782(a).
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`Dated: December 23, 2022
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`______________________________________
`BETH LABSON FREEMAN
`United States District Judge
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