Google LLC v. Dmitry Starovikov

Background

The court held a conference on the defendants’ planned motion to vacate the entry of default. The defendants said they would submit to the court’s personal jurisdiction if Google agreed to vacate the default, but Google did not agree. In an earlier opinion, the court vacated the default after noting that the defendants had not shown they could not travel to a country outside Russia.

At a June 1 initial pretrial conference, the parties agreed to two stages of fact discovery. The first stage would focus mainly on identifying the unidentified defendants, and the defendants would each be deposed twice. The parties initially agreed that the defendants would be deposed by the end of July.

Dispute Over Deposition Locations

Google said it intended to depose the defendants in the United States. The defendants said they could not travel there because of restrictions on Russian air traffic and because they could not obtain United States visas. Google represented that it had offered at least two alternative countries, but the defendants had not accepted either location.

In letters filed on June 3, the defendants said they could be deposed only in Russia, Kazakhstan, or Belarus because they lacked international passports and obtaining them would take several months. They also expressed concern about traveling to countries from which they might be extradited. The opinion states that this was the first indication to the court that the defendants lacked international passports and had not applied for them.

Google attached a transcript of a 2020 interview with defense counsel in which counsel described steps hackers should take to avoid international prosecution. Based on the proceedings, the court said there was reason to believe that the defendants had appeared in the case and sought to vacate the default to obtain discovery about Google’s investigation and to learn whether they could bypass measures Google had taken to block malware described in the complaint. The court also said there was reason to believe the defendants would not participate in discovery in good faith and that their counsel had not been candid with the court.

Ruling and Required Actions

The court stated that, to defend the action, the defendants had to be willing to submit to examination in the United States before trial and at trial. It then vacated the June 1 pretrial scheduling order and stayed all discovery of Google.

The court further ordered the defendants to comply with their initial disclosure obligations under Rule 26(a)(1) of the Federal Rules of Civil Procedure by June 17, 2022. It ordered Google to submit a letter by June 10 identifying three European countries where it would be willing and able to depose the defendants during the first stage of fact discovery. The defendants had to tell the court by June 14 whether they would be deposed in one of those countries and had to diligently arrange the depositions by the end of July.

This order addressed discovery and case scheduling; it did not decide the underlying claims in Google’s complaint.