The case of the day is In re Letter Rogatory from the Harju County Court in Estonia (N.D. Cal. 2017). Lyoness Eesti OÜ brought a defamation action in the Harju County Court in Estonia, alleging that a blogger who controlled a blog on the WordPress.com blogging platform had published “incorrect factual allegations.” The Estonian court, apparently at the plaintiff’s urging, sent a letter of request to the United States, asking for judicial assistance in obtaining the name of the anonymous blogger from Automattic, the company that operates WordPress.com. The government then brought an ex parte § 1782 application in the Northern District of California.
The judge granted the ex parte application. The details of the decision are not that interesting. What is interesting to me is that the plaintiff sought to make use of the Evidence Convention rather than making a direct application under § 1782. Why do foreign parties do this? Sometimes, it may just be a failure to appreciate that a foreign litigant can hire its own US lawyer and control its own destiny. But it may be that a sophisticated foreign litigant might realize that using the Evidence Convention may give extra oomph to a request. The Intel factors that apply to a § 1782 are discretionary, and I’ve noted before that there seems to me to be a policy argument that in light of the SPEECH Act, perhaps US courts should hesitate before granting § 1782 applications in foreign defamation cases. (I have no knowledge of Estonian defamation law and thus can’t say how it interacts with the SPEECH Act). But under Article 12 of the Convention, execution of a request can be refused only if execution “does not fall within the functions of the judiciary” or if “the State addressed considers that its sovereignty or security would be prejudiced thereby.” There is no public policy exception, in other words. I don’t know whether it happened here, but perhaps the foreign litigant, aware of US sensibilities in the area of defamation, traded away the right to sit in the driver’s seat in the US proceedings for perceived greater assurance that it would get the information it wanted.
The Swiss government has published a draft bill that, if enacted, would authorize