World Tech Center is Developing a New Industry: Discovery in International Litigation. Dealing with 28 U.S.C. Section 1782

California’s Silicon Valley is the hub of the world’s technology industry. Every facet of the hardware and software industries finds its roots in the Bay Area. Lately, however, information management and data storage services have come to the forefront of the tech industry, making it possible for users to operate anywhere in the world while their data – and often the applications that use it – to be based in the “cloud,” accessible from anywhere, rather than residing on a user’s computer. San Francisco’s rich ecosystem of startups, venture capital, and tech giants has fostered the growth of number web registrars and cloud storage providers that have become household names in the industry.

Rise of a New Tech Hub Area

Like the more traditional areas of the tech industry, cloud computing and data storage find their home in the Bay Area. And while Silicon Valley is home to some of the online storage industry’s largest players, such as Cloudflare, a new tech hub has been quietly emerging in the Southwest.

Phoenix, Arizona, has become an unexpected powerhouse in the domain registration and web hosting space. This desert metropolis is now home to several major players in the industry, including Namecheap, GoDaddy, and Domains By Proxy. A substantial portion of the Internet’s data thus resides in or flows through a server or other storage facility in the Bay Area or Phoenix at some point or another.

Companies to Know in Arizona's Domain Registration and Web Hosting World

• GoDaddy: One of the world's largest domain registrars and web hosting companies, GoDaddy has its headquarters in Tempe, Arizona, a suburb of Phoenix. Founded in 1997, the company has grown to become a dominant force in the industry, offering a wide range of services from domain registration to website building tools.
  
• Namecheap: Another significant player in the domain registration space, Namecheap is based in Phoenix, Arizona. Established in 2001, Namecheap has registered over 18 million domain names.
  
• Domains By Proxy: Recognized as a privacy protection service for domain registrations, Domains by Proxy is also headquartered in the Phoenix area.
  

Together, companies like these have made Phoenix a major crossroads of online data.

Legal Interest with Online Data Companies

With that data, of course, comes a steady stream of parties interested in obtaining it for litigation purposes. Given the truly ubiquitous nature of the Internet, discovery requests can come from literally anywhere. The requests can involve something as weighty as a foreign government seeking to track down the ill-gotten gains of a corrupt ruler, or as mundane as a litigant in a foreign court pressing a defamation claim arising out of an online forum hosted on a local server. Since the Bay Area and Phoenix are the locations of many of the world’s hosting and domain registry services, foreign litigants are winding up on our Northern California and Arizona doorstep more and more in their search for evidence.

Typically, foreign litigants resort to a federal discovery statute, 28 U.S.C. § 1782, to gain access to information located in the United States. The statute is labeled, “Assistance to Foreign and International Tribunals and to Litigants before such Tribunals.” That statute allows a party involved in a foreign legal proceeding to petition a federal court in the United States for a subpoena for information or the testimony of witnesses located in the court’s district.

As the federal court covering the Bay Area, the U.S. District Court for the Northern District of California sees a constant stream of requests for subpoenas to web hosting services, web-based email services and social networking services. Similarly, the District of Arizona federal court has seen an increase in foreign discovery related proceedings, with parties seeking evidence stored by the major web registrars based in the Phoenix Metro area. Kronenberger Rosenfeld, LLP has attorneys in both federal jurisdictions who regularly litigate 1782 petitions for a wide range of such clients.

There are several unique procedural features to 28 U.S.C. § 1782 that are crucial to understand when using the statute to seek data and information from a web registrar. The statute provides some protection for evidence that is privileged, and also allows the federal court to implement procedures and protections that would be applicable in the courts of the jurisdiction where the proceeding is pending. However, in practice, those discretionary protections are not usually applied by the local courts. Instead, foreign litigants are typically granted a wide degree of latitude in seeking and obtaining information hosted locally, notwithstanding the fact that the laws and procedures of their own courts would not have allowed access to the information.

How Can Kronenberger Rosenfeld Help?

Whether you’re looking to use 28 U.S.C. § 1782 to get documents for a foreign case, or you’re trying to keep your own information out of the hands of an overseas litigant, it is essential that you retain counsel familiar with the tools available under U.S. and foreign law to protect your interests. As leaders in the internet litigation and privacy arena, the Internet attorneys at Kronenberger Rosenfeld, LLP are uniquely prepared to provide you with the best possible representation in this arena. The firm has handled these international discovery issues under 28 U.S.C. § 1782 for a wide range of clients, at both the trial court and appellate level, and we’d be happy to bring that experience to bear for you.

For more information about how Kronenberger Rosenfeld can assist you with 28 U.S.C. § 1782, contact our firm using our submission form here.