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).