652 F. App'x 7
2d Cir.2016Background
- Gorsoan Limited and Gazprombank filed a 28 U.S.C. § 1782 application in SDNY seeking discovery from Janna Bullock, Stuart Smith, RIGroup LLC, and Zoe Remmel for use in a fraud action pending in Cyprus.
- The district court granted the § 1782 discovery request and denied the Appellants’ motion to quash subpoenas and a subsequent motion for reconsideration.
- On appeal, all four defendants proceeded pro se; RIGroup’s appeal was dismissed because a corporation must be represented by counsel and no attorney entered an appearance.
- The remaining appellants challenged the district court’s exercise of discretion under Intel factors (jurisdictional reach, receptivity of foreign tribunal, circumvention of foreign restrictions, and burdensomeness/harassment).
- The Second Circuit reviewed the district court’s rulings for abuse of discretion and affirmed: it found the statutory prerequisites satisfied and held the district court did not misapply the Intel factors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1782 statutory requirements are met | Gorsoan: requirements satisfied to obtain U.S. discovery for Cyprus proceeding | Appellants did not contest statutory requirements | Court: statutory requirements met (district court found so; appellants concede) |
| Whether first Intel factor (foreign tribunal’s reach) weighed against § 1782 relief | Gorsoan: nonparticipants’ evidence not accessible to Cyprus tribunal; Bullock had not complied with foreign discovery | Appellants: some targets (Bullock, Solferino) were parties in Cyprus so § 1782 aid unnecessary | Court: first factor favors discovery because respondents were not parties or were noncompliant in Cyprus; appellant’s argument unpersuasive |
| Whether third Intel factor (circumventing foreign proof-gathering rules) bars discovery | Gorsoan: sought permissible U.S. discovery for use abroad; not attempting circumvention | Appellants: depositions sought exceed scope allowed by Cyprus law, so § 1782 circumvents Cypriot limits | Court: no requirement that § 1782 evidence be discoverable under foreign law; court did not abuse discretion |
| Whether fourth Intel factor (unduly intrusive/harassing) bars discovery | Gorsoan: requests legitimate and aimed at proving fraud in Cyprus | Appellants: discovery is harassment and asset theft disguised as litigation | Court: record contains no support for harassment claim; district court did not abuse discretion |
Key Cases Cited
- Certain Funds, Accounts and/or Inv. Vehicles v. KPMG, L.L.P., 798 F.3d 113 (2d Cir.) (describing § 1782 framework)
- Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76 (2d Cir.) (sets out § 1782 statutory requirements and Intel factors application)
- Mees v. Buiter, 793 F.3d 291 (2d Cir.) (discusses district court discretion under § 1782)
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (Sup. Ct.) (articulates four discretionary factors for § 1782 requests)
- Lancaster Factoring Co. v. Mangone, 90 F.3d 38 (2d Cir.) (standard of review for discretionary rulings)
- In re Application for an Order Permitting Metallgesellschaft AG to take Discovery, 121 F.3d 77 (2d Cir.) (no requirement that § 1782 discovery conform to foreign discovery rules)
- Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36 (2d Cir.) (appellate waiver rule: arguments raised first in reconsideration generally not considered on appeal)