The case of the day is In re Application of Ontario Principals’ Council (E.D. Cal. 2013). This is another § 1782 case arising out of a Canadian defamation action that I covered late last year. As in the earlier case, the judge granted the application after conducting an Intel analysis but refused the applicant’s request for an order enjoining the target of the subpoena from notifying its customers of the subpoena’s existence.
The interesting aspect of the decision is the Court’s brief First Amendment discussion. In the context of deciding whether the application was consistent with public policy, the judge noted that the First Amendment does not shield defamatory speech. Fair enough. But it would have been nice to have a discussion of the relevant differences between US and Canadian defamation law, and a consideration of the implications, if any, of the SPEECH Act for the issue. The SPEECH Act doesn’t say so, but I suppose one could think that if a foreign defamation judgment would be unenforceable in the United States, then as a matter of public policy the United States should not provide judicial assistance in the prosecution of the action.