Commercial Litigation and Arbitration

§ 1782 Discovery — Courts Guided by the Standards of Rule 26 — Factors for Determining Whether There Is Good Cause to Allow Early Discovery to Determine the Identity of an Unknown Person

In re Ex Parte Application of Bertina Jommi, Petitioner, For an Order Pursuant to 28 U.S.C. § 1782, 2013 U.S. Dist. LEXIS 163201 (N.D. Cal. Nov. 15, 2013):

Petitioner Bertina Jommi filed an Ex Parte Application For an Order Pursuant to 28 U.S.C § 1782 Granting Leave to Obtain Discovery for Use in Foreign Proceedings. (Dkt. 1.) Petitioner seeks leave to issue a subpoena to and Automattic, Inc., in connection with a criminal proceeding in Switzerland. For the reasons set forth below, the Court grants Petitioner's application.

I. Background

Petitioner Bertina Jommi is a licensed psychologist and psychotherapist and has a private practice in Lausanne, Switzerland. (Jommi Decl ¶ 2.) In early 2006, a Swiss child protective services agency began investigating allegations that the husband of one of Petitioner's clients may have abused one of the couple's daughters. (Jommi Decl. ¶¶ 4-5, Ex. A at 1) As a part of this investigation, the agency interviewed Petitioner. In the interview, Petitioner opined on, among other things, the relationship between her client's husband and his daughter. (Jommi Dec. Ex. A at 4-5.) The agency incorporated this interview into a report that was made part of a criminal sexual abuse investigation against the husband. (Jommi Decl. ¶ 11, Ex. A, Ex. B.) The husband was not convicted. When he learned of the report, he filed unsuccessful complaints against Petitioner before the Association of Swiss Therapists and the Federation of Swiss Psychotherapists alleging that she lied to the agency and breached doctor-patient privilege. (Jommi Decl. ¶¶ 12, 13.)

In November 2012, Petitioner learned of a blog post about her on the blog, which is hosted by, a site that hosts blogs and provides templates free of charge. (Id. ¶ 15, Ex. C.) The title of the post was "Jommi Bertina in Lausanne," and neither the post nor the blog itself identifies the author of the post. (Id. Ex. C, Pet.'r Appl. at 7.) The post stated, among other things, that Petitioner had been dismissed as a psychotherapist due to malpractice and ethical violations, that she is incompetent and practices without a license, and that she is a "person worth avoiding if you do not want to end up at the police station after a 'simple' couples counseling." (Jommi Decl. Ex. C.) According to Petitioner, these statements closely resemble her client's husband's allegations against her, and she believes that he is the anonymous author of the post. (Jommi Decl. ¶ 17.) On November 29, 2012, Petitioner asked to take down the post and "reserve[d] the right" to seek the identity of its author. responded that it would not take the post down without a court order. (Jommi Decl. Ex. D.)

Plaintiff filed a criminal complaint for defamation against the anonymous poster on November 15, 2012, in Lausanne, Switzerland. (RJN, Ex. A, Jommi Decl. Ex. D.) Plaintiff alleged that "this article was written and published on the web by a person who wants to hurt me because I was the therapist of his spouse in 2004 and 2005, after a report to the police by a member of my patient's family." (RJN, Ex. A.) The Swiss prosecutor suspended the investigation indefinitely on May 23, 2013, stating:

   The author of the article remains unknown and no further investigation would identify the person. to file a request to an international rogatory commission, because the United States does not grant assistance for offenses against honor. Therefore, the procedure must be suspended.

Petitioner filed the pending ex parte application for leave to obtain discovery on October 8, 2013. By its application, "Petitioner seeks to serve third-party subpoenas under Rule 45 of the Federal Rules of Civil Procedure upon and its parent company Automattic for the IP address(es) used to make the anonymous post and any other personally identifying details, such as name, email addresses, physical addresses, age, etc., which could be used to identify[] this anonymous poster." (Pet'r Appl. at 9.)


Finally, Petitioner's request is also not unduly intrusive or burdensome. In assessing this issue, courts are guided by the standards in the Federal Rules of Civil Procedure. Yamaha, 2011 U.S. Dist. LEXIS 75471 at *13. [Yamaha Motors Espana, Case No. 11-80136 RS (MEJ), 2011 U.S. Dist. LEXIS 75471, at *13 (N.D. Cal. July 13, 2011).]  Rule 26(b)(1) provides that parties may obtain discovery that is relevant to any party's claim or defense. The identity of the author of an allegedly defamatory blog post is relevant to Petitioner's criminal defamation complaint. Further, in evaluating whether there is good cause to allow early discovery to determine the identity of an unknown party, courts consider whether the applicant: (1) identifies the party with sufficient specificity that the court can determine that the party is a real person subject to suit; (2) identifies all previous steps taken to locate and identify the party; (3) demonstrates that the action can withstand a motion to dismiss; and (4) proves that the discovery is likely to lead to identifying information. Columbia Ins. v., 185 F.R.D. 573, 578-80 (N.D. Cal.1999). Petitioner has satisfied these requirements. Petitioner seeks the identity of the author of a specific post on a specific blog and has identified the post by its url. (Jommi Decl. Exs. C., D.) Petitioner also recounts the steps that she took to identify the author. The investigation was instigated and has not been dismissed, but instead only suspended due to lack of information about the identity of the blog poster. Additionally, Petitioner's proposed subpoena is narrowly  tailored to seek IP addresses and subscriber information likely to identify the author of the blog post and does not seek the content of any communication. See Yamaha, 2011 U.S. Dist. LEXIS 75471 at *14, *17-*18; Gianasso, 2012 U.S. Dist. LEXIS 25763 at *5; Yamaha, 2011 U.S. Dist. LEXIS 75471 at *14.

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