The case of the day is Khrapunov v. Prosyankin (9th Cir. 2019). Khrapunov was a defendant in an English lawsuit in which he was alleged to have misappropriated money from JSC BTA Bank, a Kazakh bank. He sought discovery from Google in the Northern District of California for use in the English case, and specifically for use in proceedings aimed at lifting injunctions the English court had issued. The judge, over objections, authorized issuance of the subpoena, and the objectors appealed. While the appeal was pending, the English court decided the injunction issue, denying Khrapunov any relief. Kharpunov’s requests for leave to appeal was denied, and the English court’s decision had become final, though he claimed he could seek to set aside the English decision.

As we know, it is not necessary that the foreign proceeding should be pending in order for a § 1782 application to lie. It is enough that the proceeding be (and I am writing non-technically here) close to the starting line. And we know that the pendency of an appeal is enough to make § 1782 proper, especially in civil law jurisdiction where it is permissible to offer new evidence in the second-instance proceeding. Here, there was no appeal pending, and the court vacated for further factfinding

about the discovery sought and its relationship to the possibility of reopening the English proceedings; about the standard Khrapunov must satisfy to reopen those proceedings; about the relative likelihood of satisfying that standard; and about whether the discovery sought will actually assist Khrapunov in satisfying that standard.

The court also noted that the English court’s evident belief that Khrapunov’s claims lacked merit would also play in to the district court’s Intel analysis on remand: would the court be receptive to judicial assistance if it was convinced the claims were unmeritorious?

Judge Callahan dissented, arguing that the majority had, in effect, confused the constitutional doctrine of mootness with § 1782’s statutory requirement that the discovery sought must be for use in a foreign proceeding. With due respect to the judge, I do not really understand his point, at least after reading it a few times. I will think about it some more. On a more practical level, the judge did point out the inefficiency of the majority’s decision. I am sympathetic to that argument, and if Khrapunov were to bring a motion or an action to set aside the English decision and to claim the evidence was for use in that action, I wonder what would have been accomplished.¹Judge Callahan also had a lengthy discussion of the power of magistrate judges to decide Section 1782 applications. As I noted in March, the Ninth Circuit has been looking for a case in which to decide that issue. But this wasn’t it. As Judge Smith wrote in a brief concurrence, “The dissent’s foray into the orthogonal issue of the Federal Magistrates Act ‘swings hard at the wrong pitch.’”

I think that if the decision is confined to cases where the case really is over and all that is left is the potential to attack the foreign decision collaterally, it’s probably correct. But if the court is calling into question the appropriateness of a § 1782 application when a direct appeal is pending in the foreign case, I think the decision is wrongly decided and will lead to increased squabbling about the procedural particulars of the foreign proceeding.

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  Judge Callahan also had a lengthy discussion of the power of magistrate judges to decide Section 1782 applications. As I noted in March, the Ninth Circuit has been looking for a case in which to decide that issue. But this wasn’t it. As Judge Smith wrote in a brief concurrence, “The dissent’s foray into the orthogonal issue of the Federal Magistrates Act ‘swings hard at the wrong pitch.’”