The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
In an application for discovery pursuant to 28 U.S.C. § 1782, the petitioner, Emmanuel N. Lazaridis, seeks six categories of documents -- some spanning eight years -- from the International Centre for Missing and Exploited Children ("ICMEC") and the National Center for Missing and Exploited Children ("NCMEC"). See Ex Parte Application for Discovery Pursuant to 28 U.S.C. § 1782 ("App.") [Dkt. # 1] at 38-39.*fn1 The Respondents, ICMEC and NCMEC, assert that Mr. Lazaridis has not satisfied the statutory requirements for discovery assistance but, if the Court finds otherwise, that the application should be denied. See generally Mem. in Opp'n to App. for Discovery Under 28 U.S.C. § 1782 ("Opp'n") [Dkt. # 9]. For the following reasons, the Court will deny Mr. Lazaridis' application.
Mr. Lazaridis claims to be an interested party in a criminal prosecution against Ernie Allen and numerous other individuals pending before the Three-Member Magistrates Court of Athens, Greece ("TMMCA"), and in a "penal investigation" of those same individuals by the First Instance Prosecutor of the Hellenic Republic ("FIP") and the Electronic Crimes Unit of the Hellenic Police ("ECU"). App. at 2. He seeks "to assist" the TMMCA and the two Greek investigative authorities by obtaining records from ICMEC and NCMEC "concerning cases of children who are or have been falsely advertised as though they were missing." Id. at 3. Mr. Lazaridis alleges that he is "the complainaint before the FIP and the ECU and a civil party to [the] criminal proceedings" before the TMMCA. Id. at 6, ¶ 4. He claims that the "penal proceedings [were] scheduled for December 2010," id. at 1, and that "[t]he FIP and ECU investigations into the Defendants' punishable acts or omissions dating from January 1, 2002 to the present are ongoing." Id. at 3.
Section 1782 authorizes the district court, in its discretion, to "order [a person within its reach] 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."*fn2 28 U.S.C. § 1782(a). "[A] district court is not required to grant a § 1782(a) discovery application simply because it has the authority to do so," however. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264 (2004) (citation omitted). In addressing a discovery application, the Court considers first whether it has the authority to grant the request and then whether it should exercise its discretion to do so. Norex v. Petroleum Ltd. v. Chubb Ins. Co. of Canada, 384 F. Supp. 2d 45, 49 (D.D.C. 2005) (citing Intel Corp., 542 U.S. at 264).
In determining its authority to grant a discovery request under § 1782, the Court considers:
(1) whether the person from whom discovery is sought resides or is found in the district where the action has been filed, (2) whether the discovery sought is for use in a proceeding before a foreign or international tribunal, and (3) whether the application is made by a foreign or international tribunal or "any interested person."
Id. (citing Schmitz v. Bernstein Liebhard & Lifshitz, LLP, 376 F.3d 79, 83 (2d Cir. 2004)). It is not disputed that NCMEC and ICMEC may be found in the District of Columbia. See Opp'n at 8.
As for the second factor, the Greek prosecution obviously satisfies the foreign tribunal requirement. However, the Respondents assert that "[m]ost of Mr. Lazaridis's discovery requests have nothing to do with the Greek Prosecution," id. at 9, and that Mr. Lazaridis has not shown the existence of a foreign proceeding with regard to the Greek investigation or one that is "within reasonable contemplation." Id. at 8 (quoting Intel Corp., 542 U.S. at 259). But a foreign proceeding includes "criminal investigations conducted before formal accusation," 28 U.S.C. § 1782(a), and the Supreme Court has made clear that an adjudicative proceeding need be neither pending nor imminent "for an applicant to invoke § 1782(a) successfully[.]" Intel Corp., 542 U.S. at 253-54.
The Respondents accept that Mr. Lazaridis' production of two summonses issued for him to appear before a Greek magistrate judge shows that a preliminary investigation is underway in Greece. See Surreply in Opp'n to App. for Discovery Under 28 U.S.C. § 1782 [Dkt. # 12] at 2. They nevertheless maintain that the summonses "do not establish that a foreign proceeding is within reasonable contemplation." Id. The Respondents' reliance on the phrase "reasonable contemplation" ignores the narrow context -- proceedings before the European Commission -- in which the phrase was used. See Intel Corp., 542 U.S.C. at 259 ("[W]e hold that § 1782(a) requires only that a dispositive ruling by the Commission, reviewable by the European courts be within reasonable contemplation.") (citations omitted). In interpreting the statutory text applicable to this case, the Supreme Court stated:
In 1996, Congress amended § 1782(a) to clarify that the statute covers "criminal investigations conducted before formal accusation.". . . Nothing suggests that this amendment was an endeavor to rein in, rather than to confirm, by way of example, the broad range of discovery authorized in 1964. See S.Rep. No. 1580, at 7, U.S. Code Cong. & Admin. News 1964, pp. 3782, 3788 ("[T]he [district] court[s] have discretion to grant assistance when proceedings are pending before investigating magistrates in foreign countries.").
Id. A Greek investigation conducted by a magistrate falls squarely within the Supreme Court's interpretation of the type of pre-accusatory proceeding Congress had contemplated. The second requirement that the discovery be ...