## Facts

- Super Vitaminas, S.A. was a Guatemalan company headquartered in Guatemala City and a franchisee of GNC, a U.S.-based retailer of health and wellness products.
- Super Vitaminas imported GNC products into Guatemala using freight forwarders and resold the products in Guatemala.
- Guatemalan tax authorities initiated a criminal complaint and prosecution alleging Super Vitaminas failed to report and pay taxes on products imported in 2012.
- Super Vitaminas believed that emails sent in 2012 between its freight forwarder and Super Vitaminas personnel contained information that would exonerate the company in the criminal tax case.
- The freight forwarder allegedly sent the relevant communications from a Microsoft Hotmail account to two Super Vitaminas employees (Magdalena Herrera and Juan Roberto Castro) at their company Google Gmail accounts.
- Super Vitaminas no longer had access to the relevant email accounts and therefore could not retrieve the messages on its own.
- Super Vitaminas filed an ex parte application in the U.S. District Court for the Northern District of California seeking authority under 28 U.S.C. § 1782 to serve subpoenas on Google Inc. and Microsoft Corporation to obtain the emails for use in the Guatemalan criminal proceedings.
- The court required supplemental submissions addressing the Stored Communications Act (SCA), and Super Vitaminas filed declarations in support of its request.

## Issues

1. Whether Super Vitaminas satisfied the statutory requirements for discovery under 28 U.S.C. § 1782—i.e., that Google and Microsoft “reside or are found” in the district, the evidence is sought “for use” in a foreign proceeding, and Super Vitaminas is an “interested person.”
2. Whether, after considering the discretionary factors identified in Intel Corp. v. Advanced Micro Devices, Inc., the court should exercise its discretion to authorize discovery from Google and Microsoft for use in Guatemalan criminal proceedings.
3. Whether, and to what extent, the Stored Communications Act limits the discovery that may be compelled from Google and Microsoft in response to § 1782 subpoenas seeking email-related materials.

## Decision

- The court granted Super Vitaminas’s ex parte § 1782 application and authorized the issuance of subpoenas to Google and Microsoft for use in the Guatemalan criminal proceedings.
- The court found § 1782’s threshold requirements satisfied because Google and Microsoft were “found” in the district, the evidence was sought for use in foreign criminal proceedings, and Super Vitaminas—facing prosecution abroad—qualified as an “interested person.”
- Applying the Intel discretionary considerations, the court concluded the requested assistance was appropriate, including because the discovery targets were not participants in the Guatemalan case and the request was aimed at obtaining specific, case-related evidence.
- The court considered the SCA and limited the authorized discovery to what could be sought consistent with the SCA’s restrictions on provider disclosure of stored communications.

## Legal Principles

- Under 28 U.S.C. § 1782, a federal district court may order discovery for use in a foreign proceeding when: (1) the discovery target resides or is found in the district, (2) the discovery is for use in a proceeding before a foreign or international tribunal (including certain criminal matters), and (3) the application is made by a foreign tribunal or an “interested person.”
- Even when § 1782’s statutory requirements are met, the court has discretion to grant or deny relief; that discretion is guided by factors identified in Intel, including: (1) whether the person from whom discovery is sought is a participant in the foreign proceeding, (2) the nature of the foreign tribunal and receptivity to U.S. judicial assistance, (3) whether the request attempts to bypass foreign proof-gathering limits, and (4) whether the request is unduly intrusive or burdensome.
- The Stored Communications Act limits what electronic service providers may disclose in response to civil discovery; a § 1782 order cannot compel production beyond what the SCA permits, and courts may narrow § 1782 discovery to avoid requiring prohibited disclosure of protected communications.

## Conclusion

In Super Vitaminas, S.A., Applicant, the Northern District of California granted an ex parte § 1782 request authorizing subpoenas to Google and Microsoft to seek email-related evidence for use in a Guatemalan criminal tax prosecution, while treating the Stored Communications Act as a constraint on what the providers could be required to produce.


Super Vitaminas, S.A., Applicant, 2017 WL 5571037 (2017)