Case 1:20-mc-00036-JEB-ZMF Document 22 Filed 09/22/21 Page 7 of 32
The Gambia makes three discovery requests: (1) public and private communications
associated with the deleted content; (2) documents associated with Facebook’s internal
investigation on how Facebook identified the content it deleted; and (3) a Rule 30(b)(6) deposition
regarding all of the above. See Pet’r’s Mot. at 14–17.
II.
LEGAL STANDARD
A.
28 U.S.C. § 1782
“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.” 28 U.S.C. § 1782. Consideration of a § 1782 application
requires a two-step inquiry. “A court must first consider whether it has the authority to grant the
request and, second, whether it should exercise its discretion to do so.” In re Barnwell Enters. Ltd,
265 F. Supp. 3d 1, 8 (D.D.C. 2017) (cleaned up). The statutory elements are that (1) the person
resides or is found in the district, (2) the discovery requested will be used in a proceeding before a
foreign or international tribunal, and (3) the request is made by an interested person. See id. at 8–
9. “As long as these three mandatory factors are met, courts have broad discretion in deciding
whether to grant or deny these applications.” Attorney Gen. of British Virgin Islands v. Hyman,
No. 19-mc-164, 2020 WL 2615519, at *4 (D.D.C. May 23, 2020).
A court must evaluate whether it should exercise its discretion according to four prudential
guidelines: (1) whether the respondent is a participant in the international proceedings, (2) whether
the tribunal is resistant to using this kind of discovery, (3) whether the application circumvents the
tribunal’s proof-gathering restrictions, and (4) whether the requested discovery is unduly intrusive
or burdensome. See Intel Corp. v. Adv. Micro Devices, Inc., 542 U.S. 241, 255 (2004). “The
discretionary guidelines in Intel do not command that each factor be weighed equally, nor do they
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