Accent Delight International Ltd. v. Adelson
2017 U.S. App. LEXIS 16380
| 2d Cir. | 2017Background
- Petitioners (Accent Delight International Ltd. and Xitrans Finance Ltd.), companies for Russian collector Dmitry Rybolovlev, allege Yves Bouvier defrauded them in purchases of 38 artworks totaling ≈$2 billion by secretly inflating prices and pocketing margins.
- Petitioners joined or initiated foreign proceedings: criminal investigations in Monaco and France (as civil parties) and a civil suit in Singapore (seeking damages, later stayed and terminated on appeal).
- Petitioners applied under 28 U.S.C. § 1782 in SDNY seeking discovery from Sotheby’s and others for use in the Monaco, France, and Singapore proceedings; Sotheby’s settled to produce limited documents; Bouvier intervened and opposed broader production/use.
- The district court found Petitioners satisfied § 1782’s requirements for Monaco (petitioners are civil parties with the right to submit documents), exercised its discretion under Intel factors to grant discovery, and entered a protective order limiting initial use to Monaco, France, and Singapore (leave required for other uses).
- On appeal Bouvier challenged: (1) whether § 1782’s “for use” requirement is met where the applicant (a crime victim) has waived damages in the foreign proceeding, and (2) whether discovery obtained for one foreign proceeding may lawfully be used in other foreign proceedings without separate § 1782 findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1782’s "for use" requirement is satisfied when applicant is a crime victim who waived damages in the foreign criminal proceeding | Petitioners: they are civil parties in Monaco with procedural rights to submit documents; discovery would be useful and usable in that investigation | Bouvier: Petitioners no longer seek relief (damages) in Monaco so they cannot "use" discovery there; §1782 requires an applicant pursuing relief or a chance of victory | Court: "for use" satisfied — practical ability to inject documents into the foreign proceeding suffices; no requirement to seek damages or have a chance of monetary recovery (Intel, Berlamont controlling) |
| Whether discovery obtained under § 1782 for one foreign proceeding may be used in other foreign proceedings without separate § 1782 findings | Petitioners: once lawfully obtained for Monaco, they may use discovery in France (and Singapore) unless the §1782 court orders otherwise | Bouvier: applicant must satisfy §1782 requirements for each separate foreign proceeding where they intend to use the discovery | Court: §1782 does not bar subsequent use in other foreign proceedings; district courts may restrict use by protective order and should do so if abuse is shown |
| Mootness / appellate jurisdiction over §1782 order after production was submitted in Monaco | Petitioners: appeal remains live because they intend to use the materials in France; review necessary to determine lawful use | Bouvier: submission in Monaco may moot portion of appeal | Court: Appeal not moot; French proceeding is live and the question whether discovery was "for use" in Monaco affects ability to use in France |
| Standard of review for §1782 statutory interpretation | Petitioners: n/a | Bouvier: n/a | Court: De novo review of statutory questions; district court discretion on Intel factors remains intact |
Key Cases Cited
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (U.S. 2004) (seminal Supreme Court interpretation of § 1782; established statutory framework and discretionary Intel factors)
- In re Application of Berlamont, 773 F.3d 456 (2d Cir. 2014) (affirmed § 1782 discovery in aid of a Swiss criminal investigation submitted by a complainant/victim)
- Mees v. Buiter, 793 F.3d 291 (2d Cir. 2015) ("for use" requires practical ability to employ materials in foreign proceeding; no necessity test)
- Certain Funds, Accounts and/or Inv. Vehicles v. KPMG L.L.P., 798 F.3d 113 (2d Cir. 2015) (applicants must have means to inject evidence into foreign proceedings; lack of participation rights defeats "for use")
- Glock v. Glock, Inc., 797 F.3d 1002 (11th Cir. 2015) (§ 1782 does not, as a matter of law, prohibit later use of evidence obtained under § 1782 in other proceedings absent a protective order)