In re Align Tech. Inc.
In re Align Tech. Inc.
2022 WL 18460717 (C.D. Cal. 2022)
December 15, 2022
Audero, Maria A., United States Magistrate Judge
Summary
The court declined to take judicial notice of either the LinkedIn profile or the complaint, as information contained in LinkedIn profiles is not a proper subject of judicial notice and facts alleged in an unverified complaint are not proper subject of judicial notice. The court also denied Applicants' request for a protective order without prejudice to their re-submission to Magistrate Judge Audero in compliance with her procedures.
Additional Decisions
In re: Ex Parte Application of ALIGN TECHNOLOGY, INC. and ALIGN (SICHUAN) MEDICAL EQUIPMENT CO., LTD. for an Order Pursuant to 28 U.S.C. § 1782 Granting Leave to Obtain Discovery for Use in Foreign Proceedings
Case No. 2:22-mc-00236-SB-MAA
United States District Court, C.D. California
Filed December 15, 2022
Counsel
Karen I. Boyd, Keeley Irene Vega, Vyson Hsu, Turner Boyd LLP, Redwood City, CA, for Align Technology, Inc., Align Sichuan Medical Equipment Co., Ltd.Alex R. Straus, Milberg Coleman Bryson Phillips Grossman PLLC, Beverly Hills, CA, Kent A. Bronson, Milberg Coleman Bryson Phillips Grossman LLP, Garden City, NY, for Respondent.
Audero, Maria A., United States Magistrate Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
*1 This Report and Recommendation is submitted to the Honorable Stanley Blumenfeld, Jr., United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.[1]
I. INTRODUCTION
On December 5, 2022, Applicants Align Technology, Inc. and Align (Sichuan) Medical Equipment Co., Ltd. (together, “Applicants”) filed an ex parte application to take discovery pursuant to 28 U.S.C. § 1782 (“Section 1782”) for use in administrative patent infringement proceedings currently pending in the Beijing Municipal Intellectual Property Office (“BMIPO”) (“Application”). (Appl., ECF No. 1.) Exhibit 2 of the Application is the document subpoena Applicants seek leave to serve (“Proposed Subpoena”). (Appl. Ex. 2, ECF No. 1-2.) In support of the Application, Applicants filed (1) the Declaration of Bo Wu (“Wu Declaration,” ECF No. 2) along with its accompanying exhibits—“Wu Exhibit A” (ECF No. 2-1), “Wu Exhibit B” (ECF No. 2-2), “Wu Exhibit C” (ECF No. 2-3), and “Wu Exhibit D” (ECF No. 2-4); and (2) the Declaration of Keeley I. Vega (“Vega Declaration,” ECF No. 3) along with its accompanying exhibits—“Vega Exhibit A” (ECF No. 3-1), “Vega Exhibit B” (ECF No. 3-2), “Vega Exhibit C” (ECF No. 3-4), and “Vega Exhibit D”) (ECF No. 3-4).
Dr. B. Chia Soo (“Dr. Soo”), was served with the Application the day after it was filed. (ECF No. 7.) Although the subject of the discovery, she did not file a response.
The Court deems the Application appropriate for resolution without a hearing. See Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15. For the reasons below, the Court recommends that the District Court GRANT in part and DENY in part the unopposed Application and ORDER the Proposed Subpoena served.
II. BACKGROUND
Align Technology, Inc. (“Align”) is a global medical device company that invents, makes, and sells products that help dental and orthodontic professionals deliver effective, cutting-edge options to their patients. (Wu Decl., ¶ 13.) Among these products is the Invisalign system that is used to correct tooth alignment using a series of doctor-prescribed, custom-manufactured, clear plastic, removable aligners. (Id.) Align Technology (Sichuan) Medical Equipment Co., Ltd. (“Align Sichuan”) is a Sichuan-based entity that is part of the Align family of companies. (Id. at ¶ 14.)
Align Sichuan is one of three defendants in an administrative patent infringement case before BMIPO (“Chinese Action”). (Id. at ¶ 18.) The plaintiff in the Chinese Action is Shanghai Youhui Investment Consulting Co., Ltd., a Chinese corporation whose business includes investment management, consulting, and business consulting (“Shanghai Youhui”). (Id. at ¶¶ 17, 18.) Through the Chinese Action, Shanghai Youhui alleges that the three defendants, including Align Sichuan, infringe on Chinese patent CN102939056B (Application No. ZL201180028187.0) (“'187 Chinese Patent”)[2], through the production, sale, and offering for sale of Align's Invisalign system. (Id. at ¶ 18.)
*2 The '187 Chinese Patent was issued on June 29, 2016. (Id. at ¶ 20.) Its sole named inventor is Dr. Soo. (Id.) The '187 Chinese Patent has an international counterpart (PCT/US2011/038966) and a U.S. counterpart application (13/702,578) (“'578 U.S. Counterpart Application”), the latter of which was abandoned. (Id. at ¶ 20; Appl. 8.) On September 7, 2021, Dr. Soo assigned the '187 Chinese Patent to Shanghai Youhui.[3] (Id. at ¶ 21.) On December 6, 2012, Dr. Soo identified The Regents of the University of California as the assignee of the '578 U.S. Counterpart Application. (Id. at ¶ 22; Wu Ex. D.)
Applicants seek Section 1782 discovery in the form of a document production from Dr. Soo. Dr. Soo is a U.S. citizen and resident of Los Angeles County, California, a professor in the UCLA Department of Orthopedics, and a Vice Chair for Research in the UCLA Division of Plastic and Reconstructive Surgery. (Vega Decl., Exs. A, B.)[4] The Proposed Subpoena seeks documents related to the inventorship, development, and ownership of the '187 Chinese Patent and related patents and applications. (Appl. 9; Appl. Ex. 2.) Applicants assert that this information is “known, possessed, or controlled directly, indirectly, and/or commonly by Dr. Soo” here in the United States, and “is not available to Applicants through the Chinese Action.” (Appl. 9.)
III. LEGAL STANDARD
*3 Section 1782(a) provides, in pertinent part:
The district court of the district 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, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court.
28 U.S.C. § 1782(a).
The Supreme Court, in Intel Corp. v. AMD, 542 U.S. 241 (2004), summarized the statutory requirements for Section 1782 discovery: (1) the person or entity from whom discovery is sought must reside or be found in the district in which the district court is located; (2) the applicant must be an “interested person” in the foreign proceeding, id. at 246; and (3) the discovery must be for use in the foreign tribunal. See id. at 246–47.
Even if the Court has the authority to grant the Application, it is not required to do so. Id. at 247. A district court has wide discretion to grant discovery under Section 1782. Id. at 265. In exercising its discretion, a district court should consider the following factors: (1) whether the “person from whom 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 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 request is “unduly intrusive or burdensome.” Id. at 264–65. “A district court's discretion is to be exercised in view of the twin aims of § 1782: providing efficient assistance to participants in international litigation, and encouraging foreign countries by example to provide similar assistance to our courts.” In re Roebers, No. C12-80145 MISC RS (LB), 2012 LEXIS 97008, at *5–6 (N.D. Cal. July 11, 2012). The party seeking Section 1782 discovery need not establish that the information sought would be discoverable under the governing law in the foreign proceeding or that United States law would allow discovery in an analogous domestic proceeding. See Intel, 542 U.S. at 247, 261–63.
An ex parte application is an acceptable method for seeking Section 1782 discovery. Indeed, orders granting Section 1782 applications “typically only provide that discovery is ‘authorized,’ and thus the opposing party may still raise objections and exercise its due process rights by challenging the discovery after it is issued via a motion to quash, which mitigates concerns regarding any unfairness of granting the application ex parte.” In re Application of Apple Retail UK Ltd., No. 20-mc-80109-VKD, 2020 U.S. Dist. LEXIS 119879, at *5 (N.D. Cal. July 8, 2020) (quoting In re Varian Med. Sys. Int'l AG, No. 16-mc-80048-MEJ, 2016 U.S. Dist. LEXIS 38911, at *6 (N.D. Cal. Mar. 24, 2016)); see also In re Letters Rogatory from Tokyo Dist., 539 F.2d 1216, 1219 (9th Cir. 1976) (holding that the subpoenaed parties may raise objections and exercise their due process rights by bringing motions to quash the subpoenas).
*4 Unless the court orders otherwise, the authorized discovery must be obtained in accordance with the Federal Rules of Civil Procedure (“Rule”). 28 U.S.C. § 1782(a); In re Letters Rogatory from Tokyo Dist. Prosecutor's Office, Tokyo, Japan, 16 F.3d 1016, 1020 (9th Cir. 1994).
IV. DISCUSSION
A. Applicants Meet the Statutory Requirements for Discovery.
The District Court should find that the three statutory requirements for Section 1782 discovery are met in this case.
First, Dr. Soo is found within this District as she resides in Los Angeles County, California. (Vega Ex. B at ¶ 5.) See 28 U.S.C. § 84(c)(2) (Los Angeles County is located within the Central District of California).
Second, Applicants qualify as “interested” parties in a foreign proceeding because Align Sichuan is a defendant in the Chinese Action and part of the Align family of companies. See Intel, 542 U.S. at 256 (“No doubt litigants are included among, and may be the most common example of, the ‘interested person[s]’ who may invoke § 1782....”) (brackets in original)).
Third, Applicants seek discovery for use in patent litigation that is pending before a foreign tribunal. China has a bifurcated system in which patent infringement claims are heard by the courts and validity claims are heard by the China National Intellectual Property Administration. (Wu Decl., ¶ 12.) In addition to the court system, China has a parallel administrative patent enforcement system at the local intellectual property bureau where infringement claims may be brought. (Id. at ¶ 11.) These local intellectual property bureaus—such as the BMIPO where the Chinese Action is pending—function as quasi-judicial tribunals. (Id.) The BMIPO's status as a quasi-judicial tribunal satisfies the statutory requirement that the discovery be for use in a proceeding before a foreign tribunal. In re Ex Parte Application of TPK Touch Solutions (Xiamen) Inc., No. 16-mc-80193-DMR, 2016 U.S. Dist. LEXIS 159681, at * 6 (N.D. Cal. Nov. 17, 2016) (citing Akebia Therapeutics, Inc. v. FibroGen, Inc., 793 F.3d 1108, 1111 (9th Cir. 2015) (finding that proceedings before European and Japanese Patent Offices constitute proceedings before a “foreign or international tribunal” under Section 1782 due to the quasi-judicial nature of those proceedings).)
B. The Discretionary Factors Weigh in Favor of the Requested Discovery.
Next, the District Court should find that the Section 1782 discovery sought here is warranted as a matter of discretion in this case.
1. Participation of Target in the Foreign Proceedings
Under this factor, the Court considers whether the person from whom discovery is sought is a party to the foreign proceeding. See Intel, 542 U.S. at 264. “[T]he key issue is whether the material is obtainable through the foreign proceeding.” In re Varian Med. Sys. Int'l AG, 2016 U.S. Dist. LEXIS 38911, at *8 (internal quotation marks and citations omitted). Where the information sought can be obtained from a party to the foreign proceeding, the first Intel factor weighs against Section 1782 discovery even though the subpoena is directed to one not a party to the foreign proceeding. See In re Application of LG Elecs. Deutschland GMBH, No. 12cv1197-LAB (MDD), 2012 U.S. Dist. LEXIS 70570, at *4–5 (S.D. Cal. May 12, 2012) (denying Section 1782 discovery against a non-party of the foreign proceedings upon a finding that the plaintiff in the foreign proceeding was “in possession of that information,” and noting that “the Court is permitted, in deciding how to exercise its discretion, to consider whether the applicant has availed itself of discovery procedures in the foreign forum.”) (citation omitted)).
*5 Here, Applicants explain that, although Dr. Soo is the named inventor of the patent at issue in the Chinese Action, she is not a party to the Chinese Action and, thus, outside the jurisdictional reach of the Chinese tribunal. (Appl. 12–13.) On this basis, the District Court should conclude that the first Intel factor weighs in favor of Section 1782 discovery.
2. Receptivity of the Foreign Tribunal to U.S. Judicial Assistance
Under this factor, the Court considers “the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or the agency abroad to U.S. federal-court judicial assistance.” Intel, 542 U.S. at 264. “This factor focuses on whether the foreign tribunal is willing to consider the information sought.” In re Varian Med. Sys. Int'l AG, 2016 U.S. Dist. LEXIS 38911, at *11. “[I]f there is reliable evidence that the foreign tribunal would not make any use of the requested material, it may be irresponsible for the district court to order discovery, especially where it involves substantial costs to the parties involved.” Id. (internal quotation marks and citation omitted); see also In re Ex Parte Application of Qualcomm Inc., 162 F. Supp. 3d 1029, 1040–41 (N.D. Cal. 2016) (concluding that the second Intel factor weighed heavily against discovery where the Korea Fair Trade Commission filed an amicus brief stating that it had “no need or use for the requested discovery”).
Here, Bo Wu, Applicants' counsel, attests that the BMIPO will accept evidence obtained through Section 1782 proceedings in the United States. (Wu Decl., ¶ 31.) Mr. Wu's opinion is based upon more than thirteen years of professional experience in Chinese patent law, having served as a patent examiner for seven years at the China National Intellectual Property Administration and practiced as a patent litigator for six years at Heng Du Law Firm and Zhong Lun Law Firm. (Id. at ¶¶ 7, 8.) Mr. Wu explains that the BMIPO needs to consider and hear evidence in the Chinese Action, especially evidence relating to the issues of “the defense of qualification defect against the claimant” and “patent right ownership.” (Id. at ¶ 31.) Mr. Wu notes that he is “not aware of any reason the BMIPO would not accept the requested discovery” nor “of any Chinese policies or restrictions that would limit or prohibit seeking the requested discovery.” (Id. at ¶ 32.) He concludes that “a United States court would not offend the BMIPO or violate any Chinese law, rule, or order by ordering such discovery.” (Id. at ¶ 33.) “In the absence of authoritative proof that a foreign tribunal would reject evidence obtained with the aid of [S]ection 1782, courts tend to err on the side of permitting discovery.” In re Varian Med. Sys. Int'l AG, 2016 U.S. Dist. LEXIS 38911, at *12 (internal quotation marks and citation omitted).) On this basis, the District Court should conclude that the second Intel factor weighs in favor of Section 1782 discovery.
3. Circumvention of Proof-Gathering Restrictions
Under this factor, the Court considers whether the request for Section 1782 discovery “conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States.” Intel, 542 U.S. at 265. “A petitioner seeks to circumvent foreign discovery restrictions when it seeks discovery that cannot be obtained because the foreign jurisdiction prohibits the discovery of those documents.” Illumina Cambridge Ltd., 2020 U.S. Dist. LEXIS 29201, at *14 (internal quotation marks and citations omitted). “A perception that an applicant has side-stepped less-than-favorable discovery rules by resorting immediately to Section 1782 can be a factor in a court's analysis.” In re Varian Med. Sys. Int'l AG, 2016 U.S. Dist. LEXIS 38911, at *13 (internal quotation marks and citation omitted). On the other hand, courts have found that this factor weighs in favor of discovery where there is “nothing to suggest that [the applicant] is attempting to circumvent foreign proof-gathering restrictions.” In re Google, Inc., No. 14-mc-80333-DMR, 2014 U.S. Dist. LEXIS 173085, at *7 (N.D. Cal., Dec. 15, 2014); see also In re Eurasian Nat. Res. Corp. Ltd, No. 18-mc-80041-LB, 2018 U.S. Dist. LEXIS 54857, at *7 (N.D. Cal., Mar. 30, 2018) (finding that the third Intel factor weighed in favor of discovery where there was “no evidence” of “an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States” (internal quotation marks and citation omitted)).
*6 Here, Applicants assert that “[w]hile the Law of Civil Procedure of the People's Republic of China allows for discovery in litigation, the BMIPO does not have authority to compel a foreign national residing and/or located outside of China to appear in a proceeding to provide testimony or to produce documents similar to a court in the United States.” (Wu Decl., ¶ 30.) Moreover, there is no evidence that Applicants seek to circumvent any proof-gathering restrictions imposed by the BMIPO or other policies of China. Thus, it appears that the sole reason Applicants are unable to obtain discovery from Dr. Soo through the Chinese Action is that she resides outside of that court's jurisdiction. On this basis, the District Court should conclude that the third Intel factor weighs in favor of Section 1782 discovery.
4. Unduly Intrusive or Burdensome Discovery
Under this factor, the Court considers whether the discovery sought is “unduly intrusive or burdensome.” Intel, 542 U.S. at 265. A district court may deny a Section 1782 request if the court “suspects that the request is a fishing expedition or a vehicle for harassment.” See In re Premises Located at 840 140th Ave. NE, Bellevue, Wash., 634 F.3d 557, 563 (9th Cir. 2011). The party seeking Section 1782 discovery is not required to establish that the information sought would be discoverable under the governing law in the foreign proceeding or that United States law would allow discovery in an analogous domestic proceeding. See Intel, 542 U.S. at 247, 261–63; accord In re Roebers, 2012 U.S. Dist. LEXIS 97008, at *6. Rather, once it is established that Section 1782 discovery is not being used to circumvent a foreign jurisdiction's discovery restrictions, “the ordinary tools of discovery management, including [Rule] 26, come into play.” Illumina Cambridge Ltd., 2020 U.S. Dist. LEXIS 29201, at *21; see also In re Varian Med. Sys. Int'l AG, 2016 U.S. Dist. LEXIS 38911, at *13–14 (“The proper scope of discovery arising out of a § 1782 application is generally determined by the Federal Rules of Civil Procedure.”). Under Rule 26, a party “may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case ....” Fed. R. Civ. P. 26(b)(1). Under Rule 45, the discovery must be designed “to avoid imposing undue burden or expense on a person subject to the subpoena.” Fed. R. Civ. P. 45(d)(1).
Here, Applicants argue that the discovery sought is “narrowly tailored to seek documents directly related to issues in the Chinese Action.” (Appl. 16.) Indeed, the Court's review of the Proposed Subpoena reveals that, consistent with Applicants' assertion, it seeks documents relating to topics that—at least for purposes of Section 1782—appear relevant to the Chinese Action and may assist in the “fair and efficient resolution of the Chinese Action.” (Id.) Specifically, the document categories in the Proposed Subpoena—all related to the technology at issue in the Chinese Action—are: inventorship and/or ownership; research and development; disclosures; assignment of rights; agreements; communications; policies or guidelines; investigation, analyses, studies, or opinion regarding its patentability, enforceability or infringement; prosecution; and conception, design, testing, reduction to practice or development. (Appl. Ex. 2.) Moreover, Applicants note that they “will commit to working with Dr. Soo to address any legitimate confidentiality concerns by negotiating a stipulated protective order that will protect materials produced pursuant to this Application.” (Appl. 17.)[5] Finally, to the extent Dr. Soo or any other party contends that the documents sought through the Proposed Subpoena are not relevant to the Chinese Action, they may oppose the discovery as permitted by the Federal Rules of Civil Procedure. On this basis, the District Court should conclude that the fourth Intel factor weighs in favor of Section 1782 discovery.
C. CONCLUSION
*7 In sum, the District Court should conclude that Applicants have satisfied the three statutory requirements of Section 1782 and that all four of the Intel factors weigh in favor of granting the Application.
V. RECOMMENDATION
Consistent with the foregoing, IT IS RECOMMENDED that the District Court issue an ORDER:
1. ACCEPTING this Report and Recommendation;
2. GRANTING in part and DENYING in part the Application as follows:
a. AUTHORIZING issuance and service of the Proposed Subpoena (hereafter, the “Authorized Subpoena”), without prejudice to Dr. Soo or any other person affected by the Authorized Subpoena contesting the Authorized Subpoena as permitted by the Federal Rules of Civil Procedure. In re Letters Rogatory from Tokyo Dist., 539 F.2d at 1219 (finding that Section 1782 applications are permitted on an ex parte basis because witnesses may raise objections and assert their due process rights by moving to quash the subpoenas). Dr. Soo or any person contesting the Authorized Subpoena shall have thirty (30) calendar days from the date of service of the Authorized Subpoena to file any motions in this Court to contest it, which date may be extended by agreement of the parties or order of the Court. To allow for such motions, the return date on the Authorized Subpoena must be set at least thirty-one (31) days after the date of its service. Dr. Soo's obligation to respond to the Authorized Subpoena is automatically stayed upon the filing of any motion contesting the Authorized Subpoena and such stay shall remain in effect until such motion is resolved. In this regard, Applicants, Dr. Soo, and any person contesting the Authorized Subpoena are reminded of their obligation to comply with Central District of California Local Civil Rule 37 and Judge Audero's discovery dispute resolution process before resorting to motion practice in connection with the Authorized Subpoena. See C.D. Cal. L.R. 37; http://www.cacd.uscourts.gov/honorable-maria-audero.
b. ORDERING Applicants to serve a copy of this Order on Dr. Soo together with service of the Authorized Subpoena.
c. DENYING Applicants' request for a protective order without prejudice to their re-submission of a proposed protective order to Magistrate Judge Audero in compliance with her procedures.
Footnotes
Because a request for discovery pursuant to 28 U.S.C. § 1782 is a dispositive matter, a Magistrate Judge may not decide the matter without the consent of all parties. See CPC Patient Techs. PTY Ltd. v. Apple, Inc., 34 F.4th 801, 807–08 (9th Cir. 2022). In that the undersigned Magistrate Judge does not have the consent of both parties, she lacks authority to issue the binding ruling sought herein. Accordingly, Judge Blumenfeld referred this matter to the Magistrate Judge for Report and Recommendation. (ECF No. 8.)
Applicants attach to the Wu Declaration as Exhibit A a copy of the '187 Chinese Patent. (Wu Decl., ¶ 24.) However, because the '187 Chinese Patent is not translated into the English language and Applicants have not made a showing of good cause for its consideration, the District Court should decline to consider this document. See C.D. Cal. L.R. 11-3.10 (“Translations Required: Claim-Initiating Documents ... must be presented for filing in the English language. All other documents must be presented in English unless: (a) an English translation is concurrently provided; or (b) the Court orders otherwise upon a showing of good cause.”)
Applicants attach to the Wu Declaration as Exhibit C a copy of the assignment record of the '187 Chinese Patent, purportedly published on the official website of the China National Intellectual Property Administration. (Wu Decl., ¶ 26.) However, as with Wu Exhibit A, the District Court should decline to consider this document because it is not translated into the English language and Applicants have not made a showing of good cause for its consideration. See C.D. Cal. L.R. 11-3.10.
For this information, Applicants rely solely on Dr. Soo's LinkedIn profile and the allegations contained in an unverified complaint filed in Soo and Ting v. Bone Biologics Corporation, et al., Case No. 1:19-cv-11520-ADB, (ECF No. 1), filed in the United States District Court for the District of Massachusetts on July 11, 2019 (“Soo Complaint”). (See Vega Decl., ¶¶ 4, 5 (citing Exs. A, B).) But Applicants have not requested judicial notice of either the LinkedIn profile or the Soo Complaint. (See generally Appl.) Nor would this Magistrate Judge recommend such judicial notice. Under Federal Rule of Evidence 201(b), “[t]he court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”) Fed. R. Evid. 201(b). However, information contained in LinkedIn profiles is not a proper subject of judicial notice because it is not generally known within the Court's jurisdiction and LinkedIn is not considered a source whose accuracy cannot reasonably be questioned. See Scanlon v. Curtis Int'l Ltd., 465 F. Supp. 3d 1054, 1062 n.8 (E.D. Cal. 2020) (declining to judicially notice a company's LinkedIn profile “because their contents are not generally known within the court's jurisdiction, and LinkedIn is not a source whose accuracy cannot be reasonably questioned.” (citing Ibey v. Taco Bell Corp., No. 12-CV-0583-H (WVG), 2012 U.S. Dist. LEXIS 91030, at *3 (S.D. Cal. June 18, 2012) (citation omitted))); United States v. Safran Grp., No. 15-CV-00746-LHK, 2017 U.S. Dist. LEXIS 137264, at *23–24 (N.D. Cal. Aug. 25, 2017) (declining to judicially notice an individual's LinkedIn profile on the ground that a party raised a reasonable dispute as to the reliability of the substance of the profile) (citation omitted). Nor are facts alleged in an unverified complaint proper subject of judicial notice. While “[a] court may take judicial notice of the existence of matters of public record,” it may not judicially notice “the truth of the facts cited therein.” Marsh v. San Diego Cty., 432 F.Supp.2d 1035, 1043 (S.D. Cal. 2006) (citing Lee v. City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001); M/V Am. Queen v. San Diego Marine Const. Corp., 708 F.2d 1483, 1491 (9th Cir. 1983) (“As a general rule, a court may not take judicial notice of proceedings or records in another cause so as to supply, without formal introduction of evidence, facts essential to support a contention in a cause then before it.”) Notwithstanding, because Dr. Soo will have an opportunity to oppose the subpoena requested here, the District Court should conclude that Applicants' assertions of Dr. Soo's citizenship, residency, and involvement with the matters at issue here are sufficient at this stage of the proceedings.
Applicants include a proposed protective order with their Application. (Vega Ex. D.) However, they do so without conferring with Dr. Soo and without complying with Magistrate Judge Audero's procedures for submitting proposed protective orders. http://www.cacd.uscourts.gov/honorable-maria-audero. Accordingly, the District Court should DENY Applicants' request for a protective order without prejudice to their re-submission to Magistrate Judge Audero in compliance with her procedures.