Case of the Day: Leutheusser-Schnarrenberger v. Kogan

The case of the day is Leutheusser-Schnarrenberger v. Kogan (N.D. Cal. 2018). Dan Shefet, the president of the Association for Accountability and Internet Democracy, a French group, and Sabine Leurheusser-Schnarrenberger, the former German minister of justice, sought leave to serve a subpoena on Aleksandr Kogan under § 1782. Both Leutheusser-Schnarrenberger and Shefet had Facebook accounts. Kogan, also known as Aleksandr Spectre, was supposed to be the principal of Global Science Research Ltd., a British firm that had allegedly made a plan “to obtain massive amounts of personal data from Facebook and use it to create psychological ‘profiles’ using, for example, people’s highly personal factors such as their romantic traits inter-related to ‘the predictions their romantic partners, family members, and friends make about their traits.’”

The application foundered on the “for use” requirement: the discovery must be “for use” in a proceeding in a foreign or international tribunal. The applicants “contend[ed] that evidence obtained from Mr. Kogan would be ‘welcome’ by the French and German governments, courts, and data protection agencies.” I took a look at the declarations to see if the judge missed something: Leutheusser-Schnarrenberger said she wanted the discovery “so that I can take all appropriate measures under German law to bring to justice all those involved.” Shefet’s declaration was similar. It’s surprising that neither of the applicants said anything more definite about his or her plans for litiation. Without something more, the judge correctly denied the application.

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