Disclosure from USA websites and companies
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How to obtain disclosure from a website operator if you live outside the United States
Numerous strategies exist for obtaining disclosure from a website, online platform, or company based in the United States. It is difficult to find an attorney who is highly experienced in securing disclosure orders from the US at speed and in a cost-effective way.
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The most effective method for procuring a disclosure order from a US website depends on various factors, such as your global location and the specific location of the website within the US from which you seek disclosure. For individuals living outside the United States who need disclosure from a US-based company, there are generally three primary approaches to acquire the necessary information.
Our solicitors and attorneys in the UK and the US offer disclosure applications in the US for clients from all jurisdictions outside the US.
The first method for obtaining disclosure from third parties in the US involves filing a claim with the appropriate US state court, which is often the court which is located in the state and the city where the company from who the disclosure is sought. After filing the claim, you can apply for early discovery to gather information from third parties such as Google, domain name registrars, or website operators.
The second method for obtaining disclosure from third parties in the US entails securing a disclosure order from your local national court and then having it domesticated in the most appropriate US state court.
The third method for obtaining disclosure from third parties in the US involves initiating a claim in your local national court and seeking assistance from the federal court in the corresponding US state under 28 U.S.C. § 1782(a). We will examine the pros and cons of each of these methods in greater detail, drawing from our extensive experience in obtaining third-party disclosure orders in the US on behalf of clients residing outside the country.
Obtaining disclose from a company that is located in the US by filing a complaint (claim) in the applicable state might provide you with an effective way to obtain the disclosure you are seeking by the time it takes and the cost involved would often be jurisdictional specific and specific to where the entity you are seeking disclosure from.
Many of these applications tend to relate to the discovery of who is behind a certain website where the website is either engage in defamation or in other wronging. We're most familiar with third party disclosures from GoDaddy and Name Cheap which are located in Arizona. We have also obtained disclosure from other technology companies in California, because that's where most of the major platforms are.
If the company from which you are seeking disclosure (for example GoDaddy) is depending for jurisdictional purposes on its own terms of service to determine jurisdiction, it will be reluctant to provide you with disclosure on the basis of a court order from your own country or even from another state in the US. The first thing, therefore, that you will need to establish is jurisdiction.
Read the terms and conditions of the US company you are seeking disclosure from and write to them to confirm that the jurisdiction where you are planning to file a claim is the jurisdiction acceptable to the company. In the case of domain name registrar GoDaddy and Name Cheap, they would agree to Arizona jurisdiction based upon you becoming a customer of GoDaddy or Name Cheap.
If you aim to obtain disclosure and subsequently remove a website hosted on GoDaddy servers, it would be more convenient to pursue the matter in Arizona, as you can relatively easily subpoena GoDaddy for the necessary information and have them comply with a takedown order. To employ this method, you must first file a complaint (claim) and then promptly request the court to grant limited early discovery, allowing GoDaddy to share the information they possess about the person operating the website in question.
In cases where the offending individual's identity is unknown, you must ask the court for GoDaddy to provide limited information at an early stage. Once a state court action is underway, obtaining a state court subpoena is typically straightforward.
Frequently, the identity of the malicious party is unknown. In such cases, the complaint (claim) you file would be against John Doe. This requires you to explain to the court why you are filing a John Doe lawsuit, clarify why the wrongdoer's identity is unknown, and emphasise that your case cannot progress until the person's identity is revealed. In order to acquire the specific information needed to identify the individual behind the malicious activity, you must clearly articulate your request, providing comprehensive details such as witness statements and a detailed statement of the case (particulars of the claim).
The court will subsequently decide whether to approve or deny the request for disclosure but typically grants limited early discovery if the request is well-presented. Once the court approves the order, you can proceed with issuing the subpoena.
One issue specific to GoDaddy is that they treat all the information they provide as confidential and expect anyone referencing the information in any documentation to be listed in the subpoena; otherwise, they may resist the subpoena. Consequently, they will require you to file a motion to seal to ensure that the information they share remains confidential.
However, some judges might refuse this request to seal the information, arguing that it contradicts the principles of transparency and open justice. The necessity to have discovery files sealed makes the process more expensive and complicated, as all filed materials must be referred to in a specific manner. For instance, if there is only an email address for the individual operating the offending website, you might not be able to serve your legal document to them via email.
Another challenge with this method of obtaining discovery is that the offending individual may be operating from an entirely different jurisdiction, such as Bangladesh or the Philippines. This could require you to initiate the claim in their jurisdiction, although this is not always necessary.
The course of action you take with the information provided by the third party often depends on your objective. If your goal is simply to identify an internet troll and their location, this method might be suitable for you.
Utilising this approach offers the advantage of potentially obtaining a default judgment and injunction, which could lead to a court order mandating the removal of defamatory or offensive content from the internet. Google is likely to adhere to such an injunction, resulting in the removal of the offending website from its entire search network, including Google.com.
Bear in mind that undoubtedly, this process involves a significant amount of effort. Initiating an entire case while informing the court that the defendant's identity is unknown and requesting permission to subpoena information from an unrelated third party requires a compelling argument.
To obtain the court's approval, you must present all the details, thoroughly explain the situation, and provide witness statements and exhibits. This substantial amount of time and work makes initiating such cases more challenging and costly.
If the ultimate goal is to obtain a default judgment and an injunction, Google will generally honour the injunction around 99% of the time, unless there are extenuating circumstances. In cases where it's unlikely that the subpoena will reveal the true identity of the wrongdoer and the main objective is to remove or block specific content from search results.
This process may cost anywhere between The overall cost can range from £15,000 to £30,000, depending on the complexity of the situation. The final cost will depend on the specific circumstances and the outcome that you are seeking.
Securing a disclosure order from your national court and then having it domesticated in the relevant US court
At first glance, this seems to be the most direct approach for someone outside the US to obtain disclosure from a US-based company. You are likely familiar with your own national court and its stance on granting third-party disclosure orders, and in many cases, you can secure a disclosure order from your own national court. In the UK, this would be a Norwich Pharmacal Order.
However, as you start implementing this method, you may encounter several challenges. The first obstacle involves the potential difficulty in obtaining a third-party disclosure order from your national court concerning a US-based company without the company's consent. Some companies, like Google, often voluntarily agree to comply with appropriately granted disclosure orders by informing the national court in writing that they do not need to apply for the court's permission to serve the order outside the jurisdiction. Without such consent, your local court may be hesitant to grant an order for service beyond its jurisdiction.
Even if your local court agrees to issue a Norwich Pharmacal Order, or another similar court order for a US-based company, courts have recently started requiring service outside the UK's jurisdiction to be conducted by the Foreign Office department in the High Court, which entails substantial paperwork. Additionally, there is currently a backlog of nearly four months in their workload, meaning that the effective service of the disclosure order may be significantly delayed.
Another issue concerns your ability to domesticate foreign judgments and court orders in a local US court. In Arizona, for example, Ariz. R. Civ. P. 45.1, the state rule allowing interstate discovery, only applies to US interstate court orders. The rule is silent on domesticating court orders from courts outside the US. This could potentially form a basis for the third party, from whom you are seeking disclosure, to object to the domesticating application.
In contrast, California has a much broader rule for domesticating foreign judgments and court orders, which specifically covers orders made by courts outside of the US. Once you have obtained the disclosure order from your national court, it will take approximately 2-4 weeks for the order to be domesticated in the US state court, depending on the court's workload.
In terms of time and cost, this option could prove to be fairly effective. Even in states like Arizona, where rules regarding the domestication of foreign judgments are vague, it may still be worth pursuing this route because if no objection is raised by the third-party company from whom you are seeking disclosure, you will obtain your local court order relatively quickly and inexpensively. If you encounter a dispute, you can always withdraw the application and initiate a new one in a federal court (which will inevitably cause some delay) – a method covered in the next section of this article.
Depending on the state, the costs of domesticating a foreign court order in the US would typically range from £3,000 to £10,000, with most cases falling on the lower end. Keep in mind that this cost estimate only covers the domestication process. You will still need to account for the expenses associated with obtaining the disclosure order from your local national court.
This method is more likely to succeed in providing you with a relatively fast-track and cost-effective way of obtaining discovery from a third party in the US. 28 U.S.C. § 1782(a) is covered in detail elsewhere on this website. Essentially, 28 U.S.C. § 1782(a) is a request to a US court to provide assistance in connection with foreign legal proceedings. Broadly speaking, there are two ways by which you can utilize this method of discovery.
The first is by obtaining a letter of request from your local national court, and the second is by making the request for assistance yourself. In general, some states in the US do not require you to have ongoing legal proceedings in your own jurisdiction but merely to "contemplate" such proceedings. However, to be on the safe side, it is recommended that you first file a claim in your local national court before making an application to the US federal court under 28 U.S.C. § 1782(a).
The application process under 28 U.S.C. § 1782(a) is quite complex, so you should instruct a lawyer who is experienced in making these types of applications to handle the work on your behalf. The application under 28 U.S.C. § 1782(a) must be filed similarly to a full complaint (claim). You need to explain the case in detail to the court and address each of the four elements that are part of the statute, providing proof and adding case law for each element while explaining why you meet the requirements under 28 U.S.C. § 1782(a).
Your application must also comply with precedents and case law set by the United States Supreme Court, which is the highest court in the country, and whose rulings must be followed by all. This is similar to what is known as a Skeleton Argument in the UK. At the core of your application, you need to address what is known as Intel Discretionary Factors.
These requests typically span 20 to 25 pages of facts and legal pleadings. Depending on the court's backlog, an average request would take about 3 to 5 weeks to be reviewed by the court. Once the judge approves the request and grants the motion (application), you can send the subpoena to the relevant third party so that they can provide the requested disclosure to you.
The cost of making an application to a US federal court to provide assistance with legal proceedings outside the US typically ranges from £10,000 to £30,000, depending on the complexity of the case and the state in which the federal court is located.
While the costs may appear relatively high at first glance, it's important to consider that the associated cost in your own national local court, at least as far as an application for disclosure is concerned, will likely be minimal. This is because, at this stage, all that is required of you is to initiate or contemplate legal proceedings in your local court.
The swiftest and most cost-effective method for obtaining disclosure from a company in the US depends on several factors.
These include the company from which you are seeking disclosure, the specific rules regarding discovery and foreign domestication in the state where the company is located, and your own national court's stance on issuing court orders that may impact a company in another jurisdiction.
Before initiating a claim or filing a complaint with the court, especially when seeking disclosure of named individuals as respondents or defendants from a US entity, be sure to consult with us. This conversation can save you significant time and money, bringing you the desired outcome more quickly and with minimal guesswork.
Our attorneys in the UK and the US assist clients from various jurisdictions, not just the UK, in obtaining third-party disclosure orders in the US. We are happy to collaborate with your local lawyer, counsel, or attorney to optimise the outcome of your case and support you in obtaining the necessary disclosure from the outset. If you are a lawyer acting on behalf of a client, or if you are yet to be legally represented, Contact us here or call us free on 0800 612 7211 for prompt, helpful advice.