Discovery

Pages:2-2
74 Volume 23, October–December 2017 international law update
© 2017 International Law Group, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com
DISCOVERY
W     
S      
, E C 
 —, A
     ’
   §  ;
, A   
     
e following case involves a jurisdictional
issue regarding Section 1782 discovery. Furstenberg
Finance SAS and Marc Batallion (“Applicants”)
applied to the U.S. District Court for the Southern
District of Florida pursuant to 28 U.S.C. § 1782
for an order requiring Litai Assets, LLC (“Litai” or
“Appellant”) to produce certain discovery for use
in a Luxembourg proceeding. e district court
granted the request and issued subpoenas, Litai
moved to quash. Litai now appeals the district
court’s denial of its motion to quash.
e U.S. Court of Appeals for the Eleventh
Circuit arms because it concludes that an order
denying a motion to quash a subpoena is a nal,
appealable order in proceedings brought under
§ 1782. Other Circuits have found that an order
granting or denying a § 1782 application is
immediately appealable. Here, however, the issue
is more specic: Litai did not appeal the district
court’s order granting the § 1782 application,
but instead appealed the denial of its subsequent
motion to quash.
e Court rst reviews the jurisdiction issue.
is Court has never addressed, in a published
opinion, whether an order denying a motion to
quash a subpoena is a nal, appealable order in
proceedings brought under § 1782. It does conclude,
however, that an order denying a motion to quash a
subpoena is a nal, appealable order in proceedings
brought under § 1782. e Ninth Circuit has
addressed an analogous situation, and concluded
that had jurisdiction over an appeal from the denial
of a protective order in a proceeding under § 1782,
because the protective order “eectively would have
quashed the subpoena.” See In re Premises Located
at 840 140th Ave. NE, Bellevue, Wash., 634 F.3d
557, 562, 567 (9th Cir. 2011).
After nding jurisdiction, the Court turns to
the merits. e four statutory requirements for a
Section 1782 request are: (1) the request must be
made “by a foreign or international tribunal” or
by “any interested person”; (2) the request must
seek evidence, be it the testimony or statement
of a person or the production of a document or
other thing; (3) the evidence must be “for use in a
proceeding in a foreign or international tribunal”;
and, nally, (4) the person from whom discovery
is sought must reside or be found in the district
of the district court ruling on the application for
assistance. In re: Clerici, 481 F.3d 1324, 1331
(11th Cir. 2007).
e Court rejects Litai’s arguments that the rst
and third requirements were not met. Applicants
stated that would le a criminal complaint in
Luxembourg with a claim for damages, which will
trigger a criminal investigation by a judge. Such
investigations are proceedings within the meaning
of § 1782, and Applicants qualify as an interested
person.
  : Application of Furstenberg Finance SAS v.
Litai Assets LLC, Case Number 16-15664/16-60266
(11th Cir. 2017).

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