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  1. #1

    Default How to Take Discovery from a U.S. Entity for Overseas Litigation

    My question involves court procedures for the state of: California

    Our startup company is located in Thailand. We are currently facing an ex employee who is defaming us through libel and slander across various internet forums. We originally approached the local police on an extortion claim, as he demanded money or he would "destroy our company". That investigation is still ongoing with the police, however we have a much clearer cut case in the realm of defamation. He recently succeeded in getting one of our accounts on a social media network shut down because the administrator of that site did not want to deal with the problem, so they simply cancelled our account. This service is located in San Francisco, and we are interested in obtaining the correspondence which led them to their decision. They have refused to give it to us.

    Libel and slander is actually a criminal proceeding in Thailand where we will be filing the case, however I understand that it is generally a civil case in the US.

    My question is, what is the easiest and least expensive way to get a legally binding requirement for the social media network in question (located in California) to turn over the documents we need in order to prosecute our case (in Thailand)? We do not have a great deal of money to fight this case, but unfortunately we must do something to stop this misguided individual from continuing to make up stories about us. We have no idea what he might have told the social media company to convince them to shut down our account, but we must stop this before it gets out of hand.

    Can anyone explain how the discovery process works within the US, and specifically the state of California, when the litigation is occurring overseas? I'm just trying to understand how to begin, and how difficult a challenge this is actually going to be.

    Thank you for any recommendations or assistance.

  2. #2
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    Default Re: How to Take Discovery from a U.S. Entity for Overseas Litigation

    No libel judgment from Thailand would have any legal effect in the U.S. Foreign judgments for defamation are not enforcable in the U.S. as a matter of law. I doubt any legal process would have any effect here. You certainly can't issue a subpoena from Thailand and nobody in the U.S. with any legal sense would pay any attention to it.

    There is no least expensive way to dealing with this. You would have to hire counsel in CA, establish that the defamation and other torts took place there, and proceed with a civil action there. You are looking at many tens of thousands of dollars to start.

  3. #3
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    Default Re: How to Take Discovery from a U.S. Entity for Overseas Litigation

    How do you define "easy" and "inexpensive"? You're a foreign corporation, so at a minimum you're going to need to hire a lawyer licensed in California to commence the legal proceedings necessary to obtaining discovery from the company. Whether that may be possible through an ancillary proceeding, or whether you would realistically be looking at having to file a defamation action in California, isn't something I'm going to try to answer with so few facts available. It is difficult both to win a defamation suit in the U.S. (and, if you win, to prove significant damages), and to enforce a foreign defamation judgment in the U.S.

  4. #4

    Default Re: How to Take Discovery from a U.S. Entity for Overseas Litigation

    Thank you for your quick answer. I really do not wish to sue either the social networking company or the ex employee in the US. I would never expect to win such a case on the budget I have available. All I really wish to do is compel the social networking company to release the correspondence with this individual so that I can prove my defamation case in Thailand, where the case is quite trivial to win.

    Are you saying the only way to compel discovery is to file the case in California, get the required materials, and then file to dismiss the case in California due to lack of evidence? Is that even possible? Does California have no laws that would allow for registering an overseas litigation so that simply the discovery portion can proceed in the US? I don't really expect the social networking company to fight the motion for discovery, as they are not the ones being implicated. I simply want the correspondence which I know was sent to them, and which resulted in my account being terminated. That establishes tangible damages on the Thai side, and will result in a conviction of the ex employee. The social networking company simply doesn't want to be involved. I would think they would be even less inclined to fight releasing the correspondence if there was a genuine requirement for them to do so.

    Once I have the evidence, I have a near guaranteed conviction in the Thai courts. The cancellation of my social networking will constitute damages in the eyes of the Thai court. The question is how to compel the social networking company in California to release the correspondence so I can proceed with my case in Thailand?

    "Inexpensive" is the most cost effective solution in this case. I understand there will be cost. I am trying to understand what the least expensive alternative will be. I get nothing out of this in the end. I just need to act so as to stop this guy before it goes any further.

  5. #5
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    Default Re: How to Take Discovery from a U.S. Entity for Overseas Litigation

    Social networking companies based in the US are notoriously reluctant to release information without a US-originating court order.


    Litigation to compel them to do so tends to run into the multi-thousands of dollars.

  6. #6

    Default Re: How to Take Discovery from a U.S. Entity for Overseas Litigation

    Thank you also for your assistance. When you say "US originating", does this mean I actually have to file the defamation case in the US, or can an overseas case with some kind of "ancillary action" as knowitall mentions in comment #2 suffice? If the latter, what kind of ancillary action would be required?

    I am not sure on what grounds the social networking company could refuse a request for discovery in this case. It is quite clear they closed my account do to a correspondence. I am quite certain who that correspondence originated from (although I can't prove it until I get said correspondence from them), what I am asking for is extremely limited and specific, and I am not implicating them in any way.

    OK, I grant anyone can litigate for any reason, but their position is they are small and don't want to be involved at all. Given that is the case, why would they try and fight the disclosure? That would be deepening their involvement, which they simply want to go away. So let's narrow the scope of this a little bit:

    Assuming the social networking company does not contest a genuine, US issued court order compelling them to release the correspondence, what would be the least expensive method to acquire said court order? And how many hours of legal fees would just that portion be expected to take?

  7. #7

    Default Re: How to Take Discovery from a U.S. Entity for Overseas Litigation

    So I have done a little bit more research into what will happen. The Thai court where the defamation case is being heard can issue a subpoena duces tecum for the correspondence to be made available, but of course this subpoena will not be binding on the California social networking company.

    What I need then, is to know the procedure and the approximate cost of getting a court in California to issue a new subpoena based on the foreign subpoena. Does anyone know how this works?

  8. #8
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    Default Re: How to Take Discovery from a U.S. Entity for Overseas Litigation

    Like I said, defamation actions can run into tens of thousands of dollars.

    Your situation really goes beyond the scope of a message forum. The best advice is to speak with an attorney in California who is familiar with international law.

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