In re: Application of Newbrook, 31f4th889

Background:

Nadella Corp. (a Nevis company owned by Global Marketing Systems, Inc.) bought the MV Falcon Carrier from Falcon Carrier Shipping, which warranted the vessel was free of liabilities and agreed to indemnify Nadella.
After the sale, a creditor arrested the Carrier in Bangladesh to recover ~$368,000; Nadella sued Falcon Carrier Shipping (now arbitrating in Singapore) for breach/indemnity.
Nadella arrested two different Newbrook-owned vessels in South Africa (MV Falcon Traveller and MV Falcon Confidence), claiming they were "associated" with the Carrier; South African courts rejected some association arguments and Newbrook obtained relief for wrongful arrest in related proceedings.
Newbrook (and its subsidiary Falcon Confidence Shipping) applied ex parte under 28 U.S.C. § 1782 in Maryland seeking broad discovery from Global Marketing and Dr. Sharma for use in the South African litigation and a contemplated Nevis suit; the district court granted the application but rejected the Nevis proceeding as too speculative.
Global Marketing moved to quash service and to vacate the § 1782 order, arguing (1) much of the sought evidence was not shown to be "for use" in the qualifying South African proceeding and (2) subpoenas were not properly served on an authorized corporate agent.
The Fourth Circuit vacated and remanded: it directed the district court to identify which requested evidence is actually "for use" in the South African proceeding and to apply Intel discretionary factors to each category; it also remanded the adequacy-of-service issue under Rule 45/Rule 4.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 1782’s "for use" requirement was met for the South African proceeding	Newbrook: South African action qualifies and justifies the requested discovery; district court found South Africa qualified	Global Marketing: Application sought evidence tied to speculative Nevis action and district failed to limit discovery to evidence "for use" in South Africa	Vacated and remanded: district must identify which requested items are "for use" in the South African proceeding and limit discovery accordingly
Whether the district court abused its discretion by granting broad discovery without applying Intel factors to each category	Newbrook: discretionary Intel factors support discovery	Global Marketing: court failed to apply Intel factors to each thing sought and to weigh burdens/foreign receptivity	Remanded: district must apply the Intel factors to each category/item shown to be "for use" and exercise discretion
Adequacy of service of subpoenas under Fed. R. Civ. P. 45 (and Rule 4 agent rules)	Newbrook: attempted service (left with trader at Global Marketing office) gave notice	Global Marketing: subpoenas were not delivered to registered agent or an authorized officer/agent per Rule 4/MD Rule; service insufficient	Remanded: district did not address agent/service issue; must determine whether delivery to an appropriate agent satisfied Rule 45/4(h)
Whether the contemplated Nevis proceeding qualifies as a "proceeding" under § 1782	Newbrook: the Nevis action justified some discovery requests	Global Marketing: Nevis suit was speculative and cannot support § 1782 relief	District rejected Nevis as too speculative; Newbrook does not appeal that point, so Nevis cannot support discovery

Key Cases Cited

Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) (sets § 1782 statutory prerequisites and discretionary Intel factors)
Mees v. Buiter, 793 F.3d 291 (2d Cir. 2015) (explains "for use" requires a reasonable possibility evidence will be useful in the foreign proceeding)
In re Naranjo, 768 F.3d 332 (4th Cir. 2014) (§ 1782 orders are appealable final orders)
In re Letter of Request from Amtsgericht Ingolstadt, Fed. Republic of Germany, 82 F.3d 590 (4th Cir. 1996) (standard of review for § 1782 orders)
In re Clerici, 481 F.3d 1324 (11th Cir. 2007) (confirms § 1782 may be sought by an "interested person")
Daimler AG v. Bauman, 571 U.S. 117 (2014) (corporations act through agents; relevant to service/agent principles)
Ott v. City of Milwaukee, 682 F.3d 552 (7th Cir. 2012) (suggests certified mail can satisfy Rule 45 delivery requirement)
Virginia Dep’t of Corr. v. Jordan, 921 F.3d 180 (4th Cir. 2019) (discusses undue burden in nonparty subpoena contexts)