Prior to the Christmas holiday, a gastroenterologist and hepatologist from Australia’s Queensland province was granted discovery assistance by the Northern District of California in a case he plans to file in his home country against individuals who allegedly posted fake, negative reviews of his professional practice. The foreign discovery request requested information from American companies Google LLC and RateMDs Inc. concerning the identity of the anonymous reviewers who purportedly defamed the doctor.
According to the decision, the doctor relies on his online business profile, hosted by Google on Google Maps and his RateMDs profile, to grow his clientele. The petition said certain individuals not only gave negative reviews but also gave a “thumbs-up” to those reviews and “flagged” his positive reviews to alert moderators they should be removed.
According to the applicant’s Australian attorney, these actions constitute defamation under the common law of Queensland and the State of Queensland’s Defamation Act (2005). As such, the practitioner’s attorney sought to subpoena “documents or testimony about the identities of those who posted the defamatory reviews, those who interacted with the defamatory reviews, and those who had access to the reviews.”
Judge Beth Labson Freeman articulated that the federal statute governing such foreign discovery requests permits courts to authorize discovery where three general requirements and several discretionary factors are satisfied. Finding that the applicant ticked the non-discretionary requirements, including whether the discovery is “for use in a proceeding in a foreign or international tribunal,” the Judge Freeman turned to the subjective considerations.
First, the court noted that Google and RateMDs will not be participants in the foreign action, thereby weighing in favor of granting the application. In addition, Judge Freeman opined that Australian courts are open to U.S. assistance, meaning that the foreign tribunal is willing to consider the information sought, pointing to declarations submitted by the Australian attorney and the fact that courts in the Northern District previously granted such requests.
Lastly, Judge Freeman said that the request is neither unduly burdensome nor intrusive as it is “necessary to determine the identity of the putative defendant(s) and the amount of damages, respectively.” The opinion noted that to the extent Google or RateMDs assert that any of the information sought by the applicant is burdensome, confidential, or proprietary, they can bring a motion to quash or the parties can enter a protective order.
