The case of the day is In re Application of Lee-Shim (N.D. Cal. 2013). Jean-Michael Lee-Shim was implicated in a criminal bribery investigation in Mauritius and the United Kingdom. In the investigation, emails that came from Lee-Shim’s personal email account (he used Yahoo as his service provider) were relevant. Lee-Shim asserted than an unauthorized person had accessed his account and sent the inculpatory emails. He sought leave to serve a subpoena on Yahoo in order to determine the times and locations from which the account had been accessed.
The case is interesting because it is quite uncommon for the targets of criminal investigations to seek to make use of § 1782 before criminal charges are brought (at least as far as I have seen). Foreign governments, of course, can make use of mutual legal assistance treaties to obtain evidence in the United States. But since § 1782 plainly applies to criminal investigations as well as formal criminal proceedings, there is at least an argument that (potential) future criminal defendants should be able to make use of the statute. If this is right, then foreign criminal defendants may be better situated than targets of US criminal investigations. I am not a criminal defense lawyer, but I think it’s the case that when the government is investigating a crime, the grand jury can issue subpoenas but the potential defendant has no such power. It may be that this anomaly is a reason why § 1782 should not be read to permit potential defendants such as Lee-Shim to make such use of the statute.
The judge undertook a more or less cursory Intel analysis and granted the application. I think the case presents an interesting issue, and I hope to see it further developed.