The case of the day is Fleites v. Mindgeek SARL (C.D. Cal. 2022). The plaintiff, a victim of child sex abuse, accused the defendants of soliciting and monetizing her “child sexual abuse material.” The decision isn’t clear on this, but I assume this means that the defendants somehow sold images or videos of the abuse. The plaintiff alleged that “MindGeek used its byzantine international corporate structure of hundreds of sham shell corporations to mask the process and launder the payments.” In order to meet a jurisdictional challenge, she moved for issuance of letters of request and letters rogatory seeking evidence from third parties such as Grant Thornton, the accounting firm, in Canada, Ireland, Cyprus, and Luxembourg. The goal was to trace the flow of payments in order to make a showing that the court could exercise personal jurisdiction.
In some ways, the court’s decision is a model for how courts should consider cross-border third-party discovery motions. There was no discussion of comity or the Aerospatiale factors. Why? Because the court began with the premise that it was taking the “route of maximum comity” by making respectful requests for assistance to foreign courts and authorities for assistance. There was no need to decide between such requests and the use of other US discovery methods, because in the case of third parties abroad, there aren’t any US discovery methods available. (I’ll leave aside the exception for subpoenas to US citizens abroad).
Rather, the court focused on relevance and on other considerations that apply to any domestic discovery, such as whether it is right to put the burden on the third party, in cases where a party might have the evidence. As I’ve argued a few times recently, this is the way to go. There is no need for a comity analysis, because a comity analysis is what you do when you are deciding to issue a letter rogatory (the path of comity) or allow discovery to proceed via ordinary US discovery methods (Lasciate ogne speranza, voi ch’intrate).
The only off note in the decision, in my view, was the judge’s suggestion that the question whether it is fair to burden a third party with the obligation to produce documents when a party could produce the documents instead turns on whether the evidence is sought via subpoena or via letter of request. I don’t think this makes much sense. Perhaps the idea is that a foreign court can decide about the burden issue when it decides whether or not to execute the letter of request. But if the US court thinks it unfair to burden the third party, it would seem better not to issue the letter.