Planet Aid, Inc. v. Reveal, Center for Investigative Reporting ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PLANET AID, INC., et al., Case No. 17-cv-03695-MMC (JSC) 8 Plaintiffs, ORDER RE: PLAINTIFFS’ MOTION 9 v. FOR ISSUANCE OF LETTERS ROGATORY 10 REVEAL, CENTER FOR INVESTIGATIVE REPORTING, et al., Re: Dkt. No. 258 11 Defendants. 12 13 Now before the Court is Plaintiffs’ motion for issuance of letters rogatory pursuant to 28 14 U.S.C. § 1781 and Federal Rules of Civil Procedure 26(b)(1) and 28(b). (Dkt. No. 258.) 15 Plaintiffs’ proposed letters rogatory seek the production of documents from and depositions of 16 Malawian citizens Harrison Longwe, Kandani Ngwira, Innocent Chitosi, Mbachi Munthali, and 17 Marko Zebiah (collectively, “Foreign Declarants”). (Id. at 5; see also Dkt. Nos. 258-1- 258-5, 18 Exs. A-E.) Defendants do not oppose Plaintiffs’ motion, although they “disagree with the 19 statements and characterizations of fact in that [m]otion.” (Dkt. No. 262 at 1.) After consideration 20 of Plaintiffs’ motion and Defendants’ statement of non-opposition, the Court vacates the hearing 21 scheduled for March 5, 2020 and GRANTS Plaintiffs’ motion. 22 LEGAL STANDARD 23 A letter rogatory is a formal request “from a court in which an action is pending[ ] to a 24 foreign court to perform some judicial act.” 22 C.F.R. § 92.54; see also Intel Corp. v. Advanced 25 Micro Devices, Inc., 542 U.S. 241, 247 n.1 (2004) (defining “letter rogatory” as “the request by a 26 domestic court to a foreign court to take evidence from a certain witness”). The Federal Rules of 27 Civil Procedure provide for the taking of depositions within foreign countries through letters 1 under a letter of request, whether or not captioned a ‘letter rogatory’; . . . .”). In accordance with 2 Rule 28(b)(1)(B), “[t]he Department of State has power, directly, or through suitable channels . . . 3 to receive a letter rogatory issued, or request made, by a tribunal in the United States, to transmit it 4 to the foreign or international tribunal, officer, or agency to whom it is addressed, and to receive 5 and return it after execution.” 28 U.S.C. § 1781(a)(2). 6 Courts have “inherent power to issue Letters Rogatory,” United States v. Staples, 256 F.2d 7 290, 292 (9th Cir. 1958), and “[w]hether to issue such a letter is a matter of discretion,” Barnes & 8 Noble, Inc. v. LSI Corp., 2012 WL 1808849, at *2 (N.D. Cal. May 17, 2012). “When determining 9 whether to exercise its discretion, a court will generally not weigh the evidence sought from the 10 discovery request nor will it attempt to predict whether that information will actually be obtained.” 11 Asis Internet Servs. v. Optin Global, Inc., No. C-05-05124 JCS, 2007 WL 1880369, at *3 (N.D. 12 Cal. June 28, 2007). A court must instead apply “Rule 28(b) in light of the scope of discovery 13 provided by the Federal Rules of Civil Procedure.” Id. (collecting cases). Under Rule 26(b), 14 “[p]arties may obtain discovery regarding nonprivileged matter that is relevant to any party’s 15 claim or defense.” Fed. R. Civ. P. 26(b)(1). 16 DISCUSSION 17 Plaintiffs request the issuance of letters rogatory because Defendants’ pending motion to 18 strike the first amended complaint, (Dkt. No. 107), includes declarations of “all the Foreign 19 Declarants” in support of that motion, (Dkt. No. 258 at 7). Plaintiffs assert that they “have the 20 right to examine that testimony, under oath, to ensure its validity and to inquire about issues 21 necessary for a formal response to Defendants’ [m]otion [to strike].” (Id.) Plaintiffs further assert 22 that the testimony sought from the Foreign Declarants is relevant to Plaintiffs’ claims of 23 defamation and proportional to the needs of the case. The Court agrees on both scores. 24 First, all Foreign Declarants submitted declarations in support of Defendants’ motion to 25 strike the first amended complaint, indicating that they are witnesses with relevant information. 26 (See Dkt. Nos. 108; 115; 116; 117; 119.) Second, the first amended complaint identifies Mr. 27 Longwe, Mr. Ngwira, and Mr. Zebiah as alleged sources of specific defamatory statements at 1 Foreign Declarants is relevant to Plaintiffs’ claims. See Fed. R. Civ. P. 26(b)(1). Finally, the 2 requested discovery does not run afoul of Rule 26(b)(2)(C), which provides that courts “must limit 3 || the frequency or extent of discovery otherwise allowed” if the discovery sought “can be obtained 4 from some other source that is more convenient, less burdensome, or less expensive.” See Fed. R. 5 Civ. P. 26(b)(2)(C). Here, there is no alternative source of the information sought. 6 CONCLUSION 7 For the reasons set forth above, the Court GRANTS Plaintiffs’ motion for issuance of 8 letters rogatory. The Court will sign and affix its seal to each of the letters rogatory submitted and 9 || return the letters with original signatures and seals to Plaintiffs’ counsel for forwarding to the 10 || United States Department of State. 11 This Order disposes of Docket No. 258. 12 IT IS SO ORDERED. 13 Dated: February 24, 2020 he bin S iol ne JACQUELINE SCOTT CORL = 16 United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28