Mishra v. Google, LLC et.al.

Background

Dr. Animesh Mishra, a gastroenterologist and hepatologist in Benowa, Queensland, Australia, said that several fake negative reviews had been posted about him on Google and RateMDs. He identified two Google reviewers as “D Hartly” and “michael Fredrick.” He also said that people had interacted with the negative reviews, flagged positive reviews for removal, and possibly viewed or captured screenshots of them.

Mishra intended to bring a civil defamation lawsuit in Australia under Queensland common law and the Defamation Act (2005). His Australian attorney had prepared “concerns notice[s],” which the opinion describes as the first step toward starting that litigation. Mishra asked the court to authorize subpoenas to Google, LLC and RateMDs, Inc. seeking information about the identities and contact details of people who posted, interacted with, or accessed the identified reviews.

Legal standard

Under 28 U.S.C. § 1782, a federal district court may authorize discovery for use in a proceeding before a foreign or international tribunal when the person from whom discovery is sought is found in the district, the discovery is for use in a foreign proceeding, and the request is made by an interested person. The court also has discretion to grant or deny the request. The Supreme Court’s discretionary factors include whether the discovery recipient is a participant in the foreign proceeding, whether the foreign tribunal is receptive to U.S. assistance, whether the request attempts to evade foreign discovery limits, and whether the request is unduly intrusive or burdensome.

Court’s analysis

The court found the statutory requirements satisfied. Google was headquartered in Mountain View, California, and RateMDs was incorporated in Santa Clara County, California, both within the Northern District of California. The possible Australian lawsuit was within reasonable contemplation because Mishra intended to file it after learning the identities of potential defendants, had retained counsel, and had begun the required notice process. The court also found that Mishra, as the potential plaintiff, qualified as an interested person.

The court found that all four discretionary factors favored discovery. Google and RateMDs were not expected to be parties or participants in the Australian case, so their information might otherwise be unavailable to the Australian court. Mishra’s Australian counsel stated that Australian courts were receptive to discovery from the United States, and the court was not aware of any Australian directive against using evidence obtained under Section 1782. The court also found no reason to believe Mishra was attempting to circumvent Australian evidence laws.

Finally, the court concluded that the requested information was not unduly burdensome or intrusive. Information about the people who posted or interacted with the reviews could help identify potential defendants, while information about the number of people who viewed the reviews could help determine damages. The court noted that Google and RateMDs could raise burden, confidentiality, or proprietary-information objections through a motion to quash, or the parties could enter a protective order.

Disposition

The court granted Mishra’s ex parte application to authorize discovery under 28 U.S.C. § 1782(a). The order authorized the requested foreign discovery; it did not decide whether Mishra would ultimately prevail in an Australian defamation lawsuit. Judge Beth Labson Freeman signed the order.