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In re Application of Leret

United States District Court, District Circuit

October 7, 2013

IN THE MATTER OF THE APPLICATION OF PATRICK ROGER LERET AND LUIS ERNESTO GONZALES FOR AN ORDER PURSUANT TO 28 U.S.C. § 1782, TO OBTAIN DISCOVERY FROM ALVARO ROCHE CISNEROS FOR USE IN FOREIGN PROCEEDINGS

MEMORANDUM OPINION

JOHN M. FACCIOLA, Magistrate Judge.

On September 3, 2013, Patrick Roger Leret and Luis Ernesto Gonzales ("the applicants") filed a motion under 28 U.S.C. § 1782 seeking an Order from this Court directing Alvaro Roche Cisneros ("Roche") to submit to a deposition and to produce certain documents, both for the applicants' use in foreign proceedings. Application for (1) An Order Pursuant to 28 U.S.C. § 1782 to Conduct Discovery for Use in Foreign Proceedings, and (2) an Order to Show Cause Why a Subpoena Should Not Immediately Issue [#1]. On September 9, 2013, the Court ordered Roche to show cause at a hearing. Show Cause Order [#6]. The hearing was held on September 23, 2013, and, for the reasons stated below, the applicants' motion will be denied.

BACKGROUND

The applicants contend that the discovery they seek is relevant to three actions currently pending in Caracas, Venezuela. [#1] at 1-2. These actions are 1) Patrick Roger Leret v. Alvaro Roche Cisneros and Marion Cisneros Rendiles; 2) Albaro Roche Cisneros v. Patrick Roger Leret and Luis Ernesto Gonzales; and 3) Arquitectura y Diseno Arquimeca C.A. v. Grupo Los Principitos, C.A. Id. at 2. These foreign actions arise out of a dispute between various shareholders of Los Principitos, a Venezuelan corporation. Response of Alvaro Roche Cisneros to the Court's Order to Show Cause Why the Application of Patrick Roger Leret and Luis Ernesto Gonzalez Should Not Be Granted [#11] at 1. According to the applicants, because the respondent currently resides in Washington, D.C., they cannot obtain the discovery they seek through the Venezuelan courts. Id. at 4.

DISCUSSION

I. Legal Standard

Section 1782 of Title 28 of the United States Code, captioned "Assistance to foreign and international tribunals and to litigants before such tribunals" provides in pertinent part as follows:

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, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court... To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.

28 U.S.C. § 1782(a).[1]

To that end, the Court must determine "first, whether it is authorized to grant the request, and second, whether it should exercise its discretion to do so." Norex Petroleum Ltd. v. Chubb Insurance Co. of Canada , 384 F.Supp.2d 45, 49 (D.D.C. 2005) (citing Intel Corp. v. Advanced Micro Devices, Inc. , 542 U.S. 241, 264 (2004)). Whether a Court is authorized depends on "(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 proceeding; and (3) whether the application is made by a foreign or international tribunal or "any interested person." Norex Petroleum Ltd. , 384 F.Supp.2d at 49 (citing Schmitz v. Bernstein Liebhard & Lifshitz, LLP , 376 F.3d 79, 83 (2d Cir. 2004)).

If the Court determines that it does have the authority to grant the request, it must then determine whether it should exercise that authority, which is discretionary. Intel Corp. , 542 U.S. at 264 ("[A] district court is not required to grant a § 1782(a) discovery application simply because it has the authority to do so."). That calculus is made in light of the statute's "twin aims, " which are to provide "efficient assistance to participants in international litigation" and to encourage "foreign countries by example to provide similar assistance to our courts." Norex Petroleum Ltd. , 384 F.Supp.2d at 49 (quoting Intel Corp., 524 U.S. at 252).

Specifically, the Court must consider 1) whether the person from whom discovery is sought is a party to the foreign proceeding; 2) "the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance"; and 3) "whether the §1782(a) request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States... [and] may reject... or trim... [any] unduly intrusive or burdensome requests." Id. at 49 (quoting Intel Corp. , 542 U.S. at 264).

II. Analysis

A. The Court has Authority to Grant ...


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