There’s an interesting summary of the issues related to this practice from Magistrate Judge Peter Kang’s decision last week in U.S. v. Meta Platforms, Inc. (N.D. Cal.). A South Korean court issued what is essentially an international subpoena (“a Letter of Request under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters requesting international judicial assistance”) aimed at getting Meta to disclose the identity of the authors of several pseudonymous Instagram accounts. The request was for a civil insult case being litigated in Korean court. Here’s part of the court’s analysis:

Here’s the factual backstory:

The comments posted by the unknown defendants (pp. 14-18) do appear to be insulting (e.g., “Her appearance has already no goddam class whatsoever, so the prices of clothing are also outrageous. What the fuck, a motherless bitch!”). But I think most or all wouldn’t be viewed as defamatory factual statements by American courts, and I doubt they would rise to the level of intentional infliction of emotional distress tort. This is one reason the court’s conclusion that the First Amendment doesn’t apply to foreigners speaking outside the U.S. (as appears to be the case as a factual matter) is significant.

For a similar case allowing a discovery for a lawsuit within the Hong Kong judicial system, see Magistrate Judge Thomas Hixson’s decision in Salarzadeh v. Meta Platforms, Inc. (Nov. 14, 2023), though that case is at least in part a defamation case. The Hong Kong legal system is of course potentially subject to the control of the Chinese government, though I expect that most cases, including most private libel cases aren’t likely to actually draw Communist Party attention. (That’s a separate matter, of course, from the question raised by subpoenas stemming from cases in other countries.)

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