1:21-mc-20289
S.D. Fla.Jun 14, 2021Background
- Five applicants (heirs) sought discovery under 28 U.S.C. § 1782 from Akerman LLP for use in an Ecuadorian inheritance proceeding concerning the Deceased’s assets, including Raymond James accounts.
- The Court (Magistrate Judge Lauren Louis) granted the ex parte § 1782 application and authorized subpoenas to Akerman.
- Akerman moved to vacate that Order and to quash the subpoena, arguing (1) applicants could obtain the same material from a participant in the Ecuadorian case (the Deceased’s widow, Martha Rodriguez) and (2) the subpoena intrudes on attorney-client communications and is unduly intrusive.
- The Court considered the Intel discretionary factors (participant-status, receptivity, circumvention, and burden) and applicants’ evidence, including a declaration from an Ecuadorian lawyer about receptivity and relevance.
- Akerman did not substantiate a privilege claim or identify specific burdensome subpoena items; the Court found applicants were seeking documents tied to Akerman’s representation of the Deceased, not privileged communications.
- The Court denied Akerman’s Motion to Vacate and Quash, concluding the Intel factors weighed in favor of granting the § 1782 discovery (Order entered June 14, 2021).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Participant status (Intel factor 1) — is Akerman a participant in the foreign proceeding? | Applicants: Akerman represented the Deceased; documents sought are unique to Akerman and not obtainable from foreign participants. | Akerman: Same discovery will be sought from Martha Rodriguez, a participant, so §1782 aid is unnecessary. | Court: Akerman is not a participant; applicants seek Akerman-specific files; factor favors granting discovery. |
| 2. Receptivity of the foreign tribunal (Intel factor 2) | Applicants: Ecuadorian lawyer declares the Ecuadorian court would accept the requested evidence; material is relevant. | Akerman: Record lacks indication the Ecuadorian court would be receptive. | Court: Applicants’ evidence suffices; no showing Ecuador would reject the assistance; factor favors granting discovery. |
| 3. Circumvention of foreign proof-gathering (Intel factor 3) | Applicants: Using §1782 is permissible even if foreign discovery might be available; no evidence of intent to circumvent Ecuadorian rules. | Akerman: Seeking Akerman’s materials rather than from Rodriguez appears designed to circumvent Ecuadorian limits. | Court: No evidence of circumvention; applicants need not exhaust foreign remedies; factor favors granting discovery. |
| 4. Intrusiveness / privilege / burden (Intel factor 4) | Applicants: Most requested records are financial statements and non-attorney-client materials; heirs claim entitlement. | Akerman: Compelling production from U.S. counsel of opposing party would intrude on attorney-client relationship and privilege. | Court: Akerman failed to substantiate privilege or burden objections; subpoena not shown unduly intrusive; factor favors granting discovery. |
Key Cases Cited
- In re Clerici, 481 F.3d 1324 (11th Cir. 2007) (sets out § 1782 statutory requirements)
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (U.S. 2004) (establishes discretionary factors for § 1782 requests)
- Dep’t of Caldas v. Diageo PLC, 925 F.3d 1218 (11th Cir. 2019) (courts consider both sides’ positions when assessing foreign receptivity)
- Kiobel by Samkalden v. Cravath, Swaine & Moore LLP, 895 F.3d 238 (2d Cir. 2018) (limits on compelling U.S. counsel to produce documents not discoverable abroad)
- Campero USA Corp. v. ADS Foodservice, LLC, 916 F. Supp. 2d 1284 (S.D. Fla. 2013) (party asserting privilege bears the burden to prove it)