On March 17, 2022, Movants Olanrewaju Suraju (“Suraju”) and The Human and Environmental Development Agenda (“HEDA”) (collectively, “Movants”) filed an ex parte application pursuant to 28 U.S.C. § 1782 seeking discovery for use in a foreign proceeding from Respondents Yahoo!, Inc. (“Yahoo”) and J.P. Morgan Chase National Corporate Services, Inc. (“JP Morgan”) (collectively, “Respondents”). (Dkt. No. 1.) On May 11, 2022, the Court ordered Movants to serve copies of their application on Respondents and the Court set a briefing schedule for the application. (Dkt. No. 4.) On June 8, 2022, Yahoo filed an opposition to the application. (Dkt. No. 10.) JP Morgan filed an opposition on the same date. (Dkt. No. 13.) On July 6, 2022, the Court granted Movants' request to file a supplemental declaration. (Dkt. No. 20.) All parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636. (Dkt. Nos. 3, 18, 19.) Having considered the submissions of the parties and the relevant legal authorities, the Court HEREBY DENIES Movants' application for discovery pursuant to 28 U.S.C. § 1782, for the reasons set forth below.

Movant Suraju is the chair of Movant HEDA, an anti-corruption group in Nigeria. (Dkt. No. 1.) Mohammed Adoke (“Adoke”), the former attorney general of Nigeria, has accused Suraju of forging an email (“the email”) apparently sent by Adoke that reveals corruption relating to a certain oil production licensing agreement. (Id.) A civil proceeding for defamation and a criminal proceeding for forgery against Suraju resulted from the release of the email. (Id.) In this miscellaneous action for foreign discovery assistance brought pursuant to 28 U.S.C. § 1782, Suraju and HEDA seek discovery related to the email, other email addresses for Adoke, and other email addresses for Suraju's lawyer. (Id.) Since the application was initially filed, the criminal proceeding against Suraju has been dismissed. (Dkt. 16-1 (Afolabi Dec. Ex. A).) The civil matter remains pending, with the next hearing set for September 29, 2022. (Id.) Movants propose to issue subpoenas to Respondents Yahoo and JP Morgan, respectively. (Dkt. 1-1 (Sweetser Dec. Ex. A).) The subpoena to Yahoo seeks the following:

(Sweetser Dec. Ex. A).) The subpoena to JP Morgan seeks the following:

(Dkt. No. 1-1 (Sweetser Dec. Ex. A).)

Movants argue that the Court should order the issuance of the subpoenas because both Respondents are located in this district, the discovery is for use in the pending civil litigation in Nigeria, the application is made by interested parties, and the discovery sought is relevant, is unavailable through other means, is not unduly burdensome, and is narrowly tailored. (Dkt. No. 1.) Both Yahoo and JP Morgan oppose Movants' application. (Dkt. Nos. 10, 13.) Yahoo argues that the Stored Communications Act, 18 U.S.C. § 2702(a)(1) (“SCA”), bars the majority of Movants' requests. (Dkt. No. 10.) As to the remainder of the requests, Yahoo argues that Movants have not demonstrated that the information sought is for use in a foreign proceeding now that the criminal action against Suraju has been dismissed. (Id.) JP Morgan argues that Movants have not established that the JP Morgan entities from whom they seek discovery reside in this district, have not established that the information they seek is for use in a foreign proceeding, is unavailable through other means, is narrowly tailored, and is not unduly burdensome. (Dkt. No. 13.)

A. Legal Standards.

Section 1782 provides that “[t]he district court in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal.” 28 U.S.C. § 1782. Such an order may issue “on the application of any interest person.” Id. Therefore, “[a] district court may grant an application pursuant to 28 U.S.C. § 1782 where (1) the person from whom the discovery is sought resides or is found in the district of the district court to which the application is made, (2) the discovery is for use in a proceeding before a foreign tribunal, and (3) the application is made by a foreign or internal tribunal or any interested person.” In re Republic of Ecuador, 2010 WL 3702427, at *2, (N.D. Cal., Sept. 15, 2010); see also 28 U.S.C. § 1782 (a).

A district court has discretion to decide a section 1782 application where the statutory requirements are met. In exercising such discretion, the Supreme Court has instructed that courts weigh four factors: (1) whether the person from whom the 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 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 § 1782 application contains unduly intrusive or burdensome discovery requests. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264-65 (2004). The court's consideration should be guided by the “twin aims” of section 1782: “providing efficient assistance to participants in international litigation and encouraging foreign countries by example to provide similar means of assistance to our courts.” Id. at 252 (citation omitted).

B. Analysis.

1. Subpoena to Yahoo.

The majority of Movants' subpoena requests to Yahoo seek information protected from disclosure by the SCA. The SCA sets forth the following prohibitions on the disclosure of stored communications:

18 U.S.C. § 2702. The SCA further enumerates certain limited exceptions to the prohibitions to disclosure:

(Id.) The exceptions to the SCA are to be construed narrowly. Suzlon Energy Ltd. v. Microsoft Corp., 671 F.3d 726, 730 (9th Cir. 2011). The SCA applies to civil subpoenas, see Optiver Australia Pty. Ltd. & Anor. v. Tibra Trading Pty. Ltd. & Ors., 2013 WL 256771, at *1 (N.D. Cal. Jan 23, 2013), and to applications for discovery made pursuant to 28 U.S.C. § 1782, see Xie v. Lai, 2019 WL 7020340, at *5 (N.D. Cal. Dec. 20, 2019) (“It is well-established that civil subpoenas, including those issued pursuant to § 1782, are subject to the prohibitions of the Stored Communications Act.”)

Here, Movants' proposed requests to Yahoo numbered 2, 3, 4, 7, 8, 9, 10, and 11, reproduced in full supra, all seek the contents of communications sent through and stored on the Yahoo service. Thus, those communications are protected from disclosure under the SCA. In reply, Movants argue that the exception to the SCA allowing disclosure where the addressee consents applies here. However, Movants' requests are extremely broad, as they seek all communications between various email addresses, rather than a specific narrow set of emails to a specific addressee. Moreover, Movants have not specified which addressee consents to disclosure in this case, or provided any evidence of that consent. The SCA bars Movants' requests to Yahoo numbered 2, 3, 4, 7, 8, 9, 10, and 11.

As to requests 1, 5, and 6, Movants have not satisfied the second statutory requirement of section 1782 of demonstrating that the records sought are for use in a foreign proceeding. See 2010 WL 3702427, at *2 (listing three statutory requirements). To be “for use” in a foreign proceeding, the information sought must be relevant. Rainsy v. Facebook, Inc., 311 F. Supp. 3d 1101, 1110 (N.D. Cal. 2018). Courts are permissive in construing whether discovery sought is relevant to the claims and defenses at issue in the foreign tribunal. In re Veiga, 746 F. Supp. 2d 8, 18-19 (D.D.C. 2010); see also Digital Shape Techs., Inc. v. Glassdoor, Inc., 2016 WL 5930275, at *3 (N.D. Cal. Oct. 12, 2016) (“The party issuing the subpoena has the burden of demonstrating the relevance of the information sought.”).

The only remaining proceeding is the civil defamation proceeding. Movants have not shown how records beyond the original email alleged to be defamatory would be relevant to that proceeding. Further, Movants have not demonstrated that requests 1, 5, and 6, are narrowly tailored and not unduly burdensome. In particular, request 1 seeks all information related to a given email address over a period of three years; request 5 seeks the routing information between two emails related to the email thread; request 6 seeks the IP address of the sender of the email. Request 1 is overbroad, and Movants have not established how the evidence sought in requests 5 and 6 would tend to establish facts relevant to a civil defamation proceeding.

Accordingly, the Court DENIES Movants' application for discovery pursuant to 28 U.S.C. § 1782 directed toward Respondent Yahoo in its entirety.

2. Subpoena to JP Morgan.

Movants have not met the first statutory requirement of section 1782 to establish that the JP Morgan entities from whom they seek discovery reside in this district. See 2010 WL 3702427, at *2 (listing three statutory requirements). Movants' application lists two entities. The first, JP Morgan Chase, Inc., does not exist. A non-existent entity cannot be found in this district. See In re Application of Thai-Lao Lignite (Thailand) Co., 821 F. Supp. 2d 289,293-94 (D.D.C. 2011). The second, JP Morgan Chase National Corporate Services Inc. (herein JP Morgan), does exist and is the entity that has responded to the application. However, JP Morgan is a New York corporation with its principal place of business in New York. JP Morgan is therefore not found in this district for purposes of Movants' 1782 application. Daimler AG v. Bauman, 571 U.S. 117, 137 (2014) (observing that principal place of business forms a paradigmatic basis for general jurisdiction). JP Morgan also points out that Movants seem to imply that it could consent to the release of emails from any JP Morgan email accounts at issue. However, as discussed above, Movants have not outlined specific email addressees and have not provided evidence of their consent to release their emails. The Court concludes that Movants have not demonstrated that the entities from whom they seek discovery reside in this district.

As discussed supra, Movants have not shown that the information they seek is for use in the civil proceeding in Nigeria. To be “for use” in a foreign proceeding, the information sought must be relevant. Rainsy, 311 F. Supp. 3d at 1110. Courts are permissive in construing whether discovery sought is relevant to the claims and defenses at issue in the foreign tribunal. In re Veiga, 746 F. Supp. 2d at 18-19. As discussed above, the only proceeding that Movants have shown to be pending is the civil defamation proceeding. Here again, Movants have not shown how the extremely broad categories of information they seek are relevant to particular claims or defenses in the civil defamation case. The subpoena requests seek years' worth of records, without specifically linking them to any theory of the underlying lawsuit. The Court thus finds that Movants have not shown that the records they seek from JP Morgan would be for use in a foreign proceeding.

The Court is not obligated to consider the Intel factors, given that Movants have not met all three statutory requirements. However, the Court notes that JP Morgan's supplemental arguments are well-taken. Movants have proposed overbroad subpoenas that would impose an undue burden on Respondents, and they have not demonstrated that the information sought is unavailable from other sources in the Nigerian proceeding.

Accordingly, the Court finds that Movants' application for discovery pursuant to 28 U.S.C. § 1782 directed toward Respondent JP Morgan should be denied in its entirety.

For the reasons set forth above, the Court DENIES Movants' application for discovery pursuant to 28 U.S.C. § 1782 in its entirety. The Clerk of Court is directed to close the file.

IT IS SO ORDERED.