The case of the day is United States v. Meta Platforms, Inc. (N.D. Cal. 2023). The Korean central authority made a request to the US central authority for judicial assistance under the Evidence Convention in aid of a Korean internet defamation lawsuit where the defendant’s identity was unknown. The letter of request sought technical and user information sufficient to identify the defendant who posted the defamatory messages. The US government brought an application under Section 1782, which the court granted, without prejudice to any objections Facebook might raise to the subpoena, once issued. I bring the case to your attention to identify several points about Section 1782 and Hague Evidence Convention practice:

• Interested Persons. Section 1782 allows any “interested person” to seek judicial assistance. It is not necessary for the foreign litigant to arrange for a letter of request. However, US practice on this point is exceptional, and many foreign litigants and lawyers simply never consider the possibility of approaching a US court directly rather than through the more traditional use of letters of request. The cost of retaining US counsel can also sometimes be a factor in the decision to proceed via a letter of request, since in such cases the government, not the foreign litigant, bears the cost.
• Treaty Obligations. I have never seen the issue actually matter in practice, but the US has an obligation to execute letters of request that are proper under the Convention. Are there cases where a court would be inclined to reject a letter of request under the ordinary Intel factors but grants it anyway because of the treaty obligation?
• Commissioners. The case illustrates US practice in Evidence Convention cases. The government, when it brings a 1782 application in response to a letter of request, typically asks the US court to appoint the assistant US attorney handling the case as a commissioner to take the evidence. This procedure may also be unfamiliar to the foreign litigant and the foreign lawyer, since in the civil law world, it is the court that takes the evidence. This use of commissioners is even a bit anomalous in common law practice, since for us, a commissioner is usually appointed by the court hearing the case to take evidence outside of its own jurisdiction. But anyway, now you know how the US government handles these applications in practice.
• The SPEECH Act. Here is another question I’ve never seen addressed in practice. A federal statute, the SPEECH Act, forbids US courts from recognizing foreign defamation judgments when their defamation law is inconsistent with the First Amendment. The idea is to prevent libel tourists from obtaining defamation judgments in plaintiff-friendly jurisdictions and then bringing them to the United States for recognition. Should US courts be quick to aid foreign courts seeking evidence for use in defamation cases without considering whether a US court would recognize such a judgment under the SPEECH Act? On the one hand, nothing in the SPEECH Act expressly provides that a US court cannot provide assistance, and as a general matter the US probably should provide aid without worrying about differences between its substantive law and the substantive law of the forum. On the other hand, issuance of a subpoena under Section 1782 is discretionary, and perhaps fundamental US public policy in this area should come into play. On yet another hand, maybe we should return to the point I made earlier about treaty obligations: even if a court would exercise its discretion to deny issuance of a subpoena in a defamation case if the application were brought by the foreign litigant, does the calculus change when the foreign state makes the request and the Convention comes into play?