United States District Court, D. Colorado
WESTJEST AIRLINES, LTD., and WESTJET, an Alberta partnership, Plaintiffs,
MR. GRAHAM LIPSMAN, Defendant.
Kathleen M Tafoya United States Magistrate Judge
The matter before the court is the ex parte “Application of WestJet Airlines Ltd. and WestJet, an Alberta Partnership, for Expedited Judicial Assistance Pursuant to 28 U.S.C. § 1782.” (Doc. No. 1 [App.], filed October 6, 2015.)
Plaintiffs Westjet Airlines, Ltd., and Westjet, an Alberta partnership (collectively “Westjet”), request the court’s assistance in obtaining information and evidence from Graham Lipsman, a resident of Boulder, Colorado, and the apparent registrant and administrator of the website www.captiongenerator.com. (See Doc. No. 1-1 at 13-14, 18, 20, 22; Doc. No. 1-3 at 1- 3; Doc. No. 1-7 at 1-2.) According to Plaintiffs, the website hosts several defamatory videos directed at Westjet and its directors and officers. (App. at 1; Aff. of Corey Fotheringham [Doc. No. 1-1] with attached exhibits.) Plaintiffs claim they intend to file legal action against those responsible for the alleged defamation but have thus far been unable to identify the perpetrators. (Id.)
Prior to filing this application, Plaintiffs obtained a “Norwich Order” from the Court of Queen’s Bench of Alberta (“the Alberta Court”) requiring Mr. Lipsman to provide records disclosing the identity of the individuals who posted the accused videos on www.captiongenerator.com. (Id. at 6-7.) Mr. Lipsman did not respond to that order. (Id.) Plaintiffs present this Court with a Letter Rogatory from the Alberta Court requesting that the United States District of Court for the District of Colorado assist Westjet in its effort to obtain the information requested in the Norwich Order (id. at 7; [Doc. No. 1-2]) and to allow Westjet, pursuant to 28 U.S.C. Section 1782, to serve subpoenas upon Mr. Lipsman to collect information for use in a proceeding to be filed in Canada. (App. at 1.)
Section 1782 of the United States Code permits Courts “to assist foreign tribunals in obtaining relevant information that the tribunals may find useful but, for reasons having no bearing on international comity, they cannot obtain under their own laws.” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 262 (2004).
Section 1782 provides:
(a) The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.
A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.
28 U.S.C. §1782. Section 1782’s requirements for assistance are met when:
(1) the person from whom discovery is sought resides (or is found) in the district of the district court to which the application is made,
(2) the discovery is for use in a foreign proceeding before a tribunal, and
(3) the application is made by a foreign or international tribunal or any ...