Interesting Illustration of International Subpoenas Aimed at Identifying Alleged Online Defamers

From In re Ex Parte Application of Kim, decided Thursday by Judge Beth Labson Freeman (N.D. Cal.), a case involving an application filed “pursuant to 28 U.S.C. § 1782, seeking leave to take limited discovery from Google LLC” for a South Korean civil defamation case:

Ms. Kim claims that she has been the victim of cyberbullying arising from her relationship with Tae-Won Chey, with whom she lives in the Republic of Korea, where they are raising their child. For the past eight years, Mr. Chey has been involved in legal proceedings relating to his divorce from So-Yeong Roh. Mr. Chey is the Chairman of a large Korean tech conglomerate and Ms. Roh is the daughter of former South Korean president Tae-Woo Roh.

Their divorce proceedings have garnered significant publicity, and anonymous persons have published more than 100 videos on YouTube that portray Ms. Kim in a negative light. Among other things, the YouTube videos state that Ms. Kim fabricated her academic credentials and that Ms. Kim’s mother was a bar hostess and the mistress of a married man.

The videos were posted anonymously on ten different YouTube channels. The persons who posted the videos appear to be native Korean speakers, and nothing in the videos suggests that they live outside of Korea. Ms. Kim has filed ten civil defamation actions in the Seoul Western District Court in Korea. Those actions have not been served, however, because Ms. Kim has not been able to discover the identities of the persons who posted the videos.

Ms. Kim asserts that the information necessary to identify the persons who posted the videos is held by YouTube’s parent company, Google LLC, which maintains its principle office in Mountain View, California….

As construed by the Supreme Court, § 1782 “authorizes, but does not require” a district court to permit discovery for use in a foreign proceeding. Intel Corp. v. Advanced Micro Devices, Inc., (2004). “Section 1782′s statutory language has been distilled to permit district courts to authorize discovery where three general requirements are satisfied: (1) the person from whom the discovery is sought ‘resides or is found’ in the district of the district court where the application is made; (2) the discovery is ‘for use in a proceeding in a foreign or international tribunal’; and (3) the application is made by a foreign or international tribunal or ‘any interested person.’”

“[E]ven where an applicant satisfies § 1782′s statutory prerequisites, the district court still retains substantial discretion to permit or deny the requested discovery.” “This discretion is guided by the Supreme Court’s articulation in Intel of four non-exclusive 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 § 1782(a) 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 discovery requests are ‘unduly intrusive or burdensome.’”

The court went through the three textual requirements and the four additional Intel factors; some of them played out in obvious ways, but here’s an excerpt as to the less obvious ones:

The third Intel factor asks whether the request for discovery is an attempt to circumvent … policies of … the United States…. Ms. Kim points out that although defamation claims may implicate First Amendment issues, the First Amendment does not apply to foreign citizens in a foreign country. See Zuru, Inc. v. Glassdoor, Inc. (N.D. Cal. 2022) (“The First Amendment doesn’t apply to foreign citizens outside U.S. territory[.]“). The record suggests that the persons who posted the videos are Korean citizens, as the videos are titled and narrated in Korean, use colloquial Korean terms, and focus on Ms. Kim’s relationship with a prominent Korean figure….

The fourth Intel factor asks whether the requested discovery is unduly intrusive or burdensome. The Court finds that the subpoena Ms. Kim wishes to serve on Google LLC is narrowly tailored to obtain information necessary to identify and litigate against the persons who posted the anonymous videos on YouTube. Other courts in this district have allowed the service of similar subpoenas on Google LLC pursuant to § 1782….

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