and Submitted December 20, 2018 San Francisco, California
from the United States District Court No. 4:17-mc-80107-HSG
for the Northern District of California Haywood S. Gilliam,
Jr., District Judge, Presiding
Michael L. Freedman (argued), Cara E. Trapani, and Jeffrey L.
Bornstein, Rosen Bien Galvan & Grunfeld LLP, San
Francisco, California, for Objectors-Appellants.
Matthew C. Dirkes (argued) and Martha Boersch, Boersch
Shapiro LLP, Oakland, California, for Plaintiff-Appellee.
Before: Consuelo M. Callahan, N. Randy Smith, and Mary H.
Murguia, Circuit Judges.
panel vacated the district court's grant of an
application under 28 U.S.C. § 1782 for discovery of
evidence for use in a foreign tribunal and remanded for
district court denied objectors relief from a magistrate
judge's order granting plaintiff's application for
issuance of a subpoena to Google, Inc., compelling the
disclosure of certain subscriber information in the
company's possession. That information, plaintiff
claimed, would aid his attempt to discharge two court orders
issued against him in ongoing litigation in England. In the
English proceeding, a Kazakhstan bank, alleging that it had
been defrauded, had obtained a worldwide asset freeze order
and cross-examination order against plaintiff.
courts subsequently denied plaintiff's attempts to
discharge the two orders. The panel concluded that these
developments in the English litigation called into doubt the
statutory requirement of § 1782 that the discovery be
for use in a foreign "proceeding." The panel
therefore vacated the district court's judgment and
remanded for further proceedings.
in the judgment and dissenting, Judge Callahan wrote that the
action was not moot, and she would hold that a ruling
resolving objections to a subpoena issued under § 1782
is dispositive, and thus, absent consent by the parties to a
magistrate judge having general jurisdiction, such a matter
must be determined de novo by a district court judge.
Judge N.R. Smith wrote that the dissent was an advisory
MURGUIA, CIRCUIT JUDGE
U.S.C. § 1782 authorizes, but does not require, federal
district courts to assist in the production of evidence for
use in a foreign or international tribunal. Intel Corp.
v. Advanced Micro Devices, Inc., 542 U.S. 241, 247
(2004). Here, the district court granted Plaintiff-Appellee
Ilyas Khrapunov's application for discovery under §
1782. However, the factual circumstances surrounding
Khrapunov's application have changed dramatically during
the pendency of this appeal. We therefore vacate the decision
below and remand to the district court to consider, in the
first instance, whether the statutory requirements for
discovery under § 1782 remain satisfied and whether, as
a matter of the district court's discretion, discovery
filed a § 1782 application in federal district court,
seeking issuance of a subpoena to Google, Inc., compelling
the disclosure of certain subscriber information in the
company's possession. That information, Khrapunov
claimed, would aid his attempt to discharge two court orders
issued against him in ongoing litigation in England.
proceedings in England stem from Khrapunov's alleged role
in the misappropriation of billions of dollars from JSC BTA
Bank, a major bank in Kazakhstan. The bank alleges that, with
Khrapunov's assistance, the bank's prior chairman,
Mukhtar Ablyazov, defrauded it of nearly $6 billion.
bank obtained two court orders in the English litigation
relevant to this appeal: an order imposing a worldwide freeze
of Khrapunov's assets, and an order permitting the
bank's attorneys to cross-examine Khrapunov concerning
his assets. Khrapunov filed separate applications in the
English litigation to discharge the worldwide freeze order
and the cross-examination order.
August 2017, Khrapunov filed his § 1782 application in
the Northern District of California, requesting that a
subpoena issue to Google. The application was assigned to a
magistrate judge who granted the application, and the
Pavel Prosyankin and John Doemoved to quash the subpoena. The
magistrate judge declined to quash the subpoena in its
entirety but did narrow its scope somewhat. Objectors then
sought review by the district court. The district court
denied relief, and Objectors appealed.
these matters were pending in district court and on appeal,
the proceedings in England continued. According to a supplemental
declaration provided by Objectors on appeal, in February and
May 2018, Khrapunov's attempts to discharge the two court
orders against him-the asset freeze order and the
cross-examination order-were denied by English courts.
Khrapunov was not given permission to appeal those denials,
and at least one judge found Khrapunov's arguments to be
"totally without merit." According to Objectors,
this means Khrapunov's discharge applications have
"been finally determined against him, and Mr. Khrapunov
cannot appeal or pursue them any further." Khrapunov
does not dispute that the discharge applications have been
finally decided and that his request to appeal has been
denied. Instead, he argues that he retains the ability to
reopen those proceedings if he discovers new evidence- like
the subscriber information he seeks from Google.
argue that the English courts' final, nonappealable
denials of Khrapunov's applications render this case
moot. Alternatively, Objectors argue that the district court
applied the incorrect standard in reviewing the magistrate
judge's decision and that the district court abused its
discretion by failing to properly weigh the relevant factors
when considering whether to grant the application under
jurisdiction under 28 U.S.C. § 1291. In re Premises
Located at 840 140th Ave. NE, Bellevue, Wash., 634 F.3d
557, 567 (9th Cir. 2011). We review the district court's
decision under § 1782 for abuse of discretion. Four
Pillars Enters. Co., Ltd. v. Avery Dennison Corp., 308
F.3d 1075, 1078 (9th Cir. 2002).
Section 1782 provides:
[t]he district court of the district in which a person
resides or is found may order him to . . . produce a document
or other thing for use in a proceeding in a foreign or
international tribunal . . . . The order may be made . . .
upon the application of any interested person[.]
28 U.S.C. § 1782(a). Section 1782's statutory
language has been distilled to permit district courts to
authorize discovery where three general requirements are
satisfied: (1) the person from whom the discovery is sought
"resides or is found" in the district of the
district court where the application is made; (2) the
discovery is "for use in a proceeding in a foreign or
international tribunal"; and (3) the application is made
by a foreign or international tribunal or "any
interested person." See 28 U.S.C. §
1782(a); see also Brandi-Dohrn v. IKB ...