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In re Digiulian

United States District Court, District of Columbia

April 23, 2018

IN RE APPLICATION OF SASHA DIGIULIAN AND JOHN CHARLES DIGIULIAN FOR SUBPOENA FOR DOCUMENTS AND TO PRODUCE TESTIMONY FROM EDWARD T. CULLEN, M.D.

          MEMORANDUM OPINION

          ROBIN M. MERIWEATHER UNITED STATES MAGISTRATE JUDGE

         Petitioners Sasha DiGiulian and John Charles DiGiulian (“Petitioners”) seek an order from the Court, pursuant to 28 U.S.C. § 1782, approving the issuance of a subpoena that would direct Dr. Edward T. Cullen (“Respondent” or “Dr. Cullen”) to produce medical records and appear and testify at a deposition. See Ex Parte Pet. for Order Produce Docs. and Test. for Use in Foreign Proceeding (“Petition”) at 1, ECF No. 1. Petitioners intend to use this discovery to challenge the validity of their paternal grandmother's will in a proceeding pending before a court in Quebec, Canada. See id.; Pet'rs' Mot. for Entry Order Authorizing Subpoenas (“Mot. for Entry Order”), ECF No. 3. Dr. Cullen did not oppose the Petition, and appears to have voluntarily provided some of the records that Petitioners seek. See Mot. for Hr'g Regarding Entry Order Authorizing Subpoenas and Dep. (“Mot. for Hr'g II”) ¶ 4, ECF No. 6. Having considered the Petition, related filings, [1] and applicable law, the Court GRANTS the Petition.

         BACKGROUND

         On December 14, 2017, Petitioners filed an ex parte petition pursuant to 28 U.S.C. § 1782, seeking an order authorizing the issuance of discovery for use in a foreign proceeding in Canada. See Pet. at 1. Specifically, Petitioners wish to issue a subpoena to compel Dr. Cullen to appear for a deposition and produce certain medical records. See Id. In the Petition, Petitioners advised the Court that they “imminently” intended to file an action in Quebec Superior Court challenging the validity of the April 29, 2015 will of their paternal grandmother, Rita DiGiulian, based on her alleged mental incapacity and undue influence. Id.; Pet., Ex. A (“Steinberg Decl.”) ¶¶ 6, 13, ECF No. 1-2. Petitioners have since advised the Court that they filed the action in the Quebec court on February 15, 2018. Mot. for Hr'g I ¶ 7.

         At the time of her death on January 27, 2017, Rita DiGiulian jointly owned a piece of real estate in Quebec, Canada, with Petitioners' mother, Andrea DiGiulian. See Steinberg Decl. ¶ 12. Petitioners indicate that they have possession of two wills purportedly endorsed by Rita DiGiulian as her last will and testament that pertain to this jointly owned property: (1) a March 21, 2013 will providing that Petitioners, as issue of Rita DiGiulian's predeceased son and Petitioners' father, would each receive 50 percent of Rita DiGiulian's joint ownership interest in the property; and (2) an April 29, 2015 will, altering the 2013 will and divesting Petitioners of all interest in Rita DiGiulian's joint ownership interest in the property. Id. ¶ 13. Petitioners also assert that Rita DiGiulian exhibited signs of dementia during a June 5, 2015 video deposition taken in an unrelated matter. Id. ¶ 15; Mem. in Supp. Pet. (“Mem. in Supp.”) at 2, ECF No. 1-1. Petitioners note that in this deposition, Rita DiGiulian was unable to recognize or identify her own lawyer or remember personal details, including her birth date, her residence at the time, and her grandchildren's names. Steinberg Decl. ¶ 15.

         Petitioners state that from 2013 to 2017, Dr. Cullen served as Rita DiGiulian's primary care physician. Steinberg Decl. ¶ 18. Prior to the June 5 video deposition, Dr. Cullen allegedly described Rita DiGiulian's health as fragile. See Mem. in Supp. at 2. Petitioners assert that for these reasons, Dr. Cullen's records and testimony regarding Rita DiGiulian are relevant and necessary for their Canadian proceeding. Pet. at 1-2; Steinberg Decl. ¶ 23. Specifically, in addition to deposition testimony, Petitioners seek the following documents from Dr. Cullen:

1. Rita DiGiulian's medical records from January 1, 2013 through June 30, 2015, including, but not limited to all notes, charts, test results or other writings;
2. All letters, correspondence, emails, and other documents between Dr. Cullen's and/or his office and third persons in which Dr. Cullen references Rita DiGiulian's medical/mental state, from January 1, 2013 through June 30, 2015;
3. All records, letters, correspondence, emails, and other documents received by Dr. Cullen and/or his office related to Rita DiGiulian's treatment, and/or upon which Dr. Cullen or his office relied, related to Rita DiGiulian's medical treatment, from January 1, 2013 through June 30, 2015;
4. All prescriptions written by Dr. Cullen for Rita DiGiulian from January 1, 2013 through June 30, 2015;
5. All medical referrals by Dr. Cullen for Rita DiGiulian from January 1, 2013 through June 30, 2015; and
6. All other documents and/or things in Dr. Cullen's possession, custody or control, that are relevant to Rita DiGiulian's mental and/or medical state between January 1, 2013 and June 30, 2015.

Mem. in Supp. at 3.

         On December 28, 2017, the Court entered an Order to Show Cause directing Petitioners to serve the Order and the Petition upon Dr. Cullen, and directing Dr. Cullen to file a response by January 22, 2018 if he intended to oppose the Petition. See Order to Show Cause, ECF No. 2. Petitioners timely served the Order and Petition on Dr. Cullen by facsimile and by hand delivery to his office in Bethesda, Maryland. See Mot. for Entry Order ¶¶ 4-5 & Exs. A-C. Dr. Cullen has filed no opposition, and Petitioners represent that Dr. Cullen has voluntarily provided some of the requested medical records. Mot. for Hr'g II ¶ 4. In accordance with a request from the Court, Petitioners also filed a supplemental ...


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