637 F.Supp.3d 74
S.D.N.Y.2022Background
- Applicants Zouzar Bouka (a gérant of SPARL) and two Madagascar companies (VIO and VIMA) allege Symbion misappropriated funds and refused to transfer a 5% interest in SMML related to the Mandroseza power plant.
- Symbion (through SPARL) operated the Mandroseza plant; an ICDR arbitration among the parties is pending in New York; Symbion settled with Alpha; Bouka’s discovery requests in arbitration were limited/denied in part.
- Bouka initiated a criminal complaint in Madagascar against Symbion CEO Paul Hinks; SPARL may participate as a civil party in the Malagasy criminal prosecution and the criminal matter proceeded to trial after appeals were exhausted.
- In Feb. 2022 Symbion sold its interest in the plant to Groupe Filatex; Bouka alleges the sale violated shareholder/statutory rights and has retained French counsel and threatened French litigation.
- Bouka filed an ex parte §1782 application in SDNY seeking six document subpoenas and six deposition subpoenas directed to Hinks and five Symbion-related U.S. entities to obtain evidence for use in the Malagasy criminal proceeding and a contemplated French civil suit.
- The court granted the §1782 application in part: it found discovery "for use" in the Madagascar criminal case and authorized a narrowed set of subpoenas (deposition of Hinks and Rule 30(b)(6) depositions and document production from Symbion Power LLC and Symbion Energy Holdings Ltd.), but denied §1782 relief insofar as it sought discovery for the contemplated French action against Symbion and related parties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether requested discovery is "for use" in the Madagascar criminal proceeding under §1782 | Bouka: SPARL is a civil party in the Malagasy prosecution and can introduce evidence; documents will be used in that proceeding | Respondents: Bouka cannot submit evidence / proceeding is a sham; alleged procedural defects | Court: "For use" satisfied — SPARL has procedural rights to introduce evidence; merits of foreign proceeding not probed |
| Whether requested discovery is "for use" in the contemplated French civil action | Bouka: Retained French counsel, defined legal theory (failure to give notice, preemption rights), demand letters sent — suit is reasonably contemplated | Respondents: Proceedings speculative; applicant seeks discovery to decide whether to sue | Court: French suit "reasonably contemplated" but discovery from Symbion/Hinks via §1782 denied for other discretionary reasons (see below) |
| Whether Court should exercise discretion (Intel factors) to allow discovery for Malagasy prosecution and scope of subpoenas | Bouka: Malagasy court receptive; foreign tribunal may not be able to obtain documents from non‑party U.S. entities; requests relevant | Respondents: Hinks is a participant; concerns about Malagasy judicial fairness; burden and irrelevance of several subsidiaries | Court: Intel factors favor granting discovery for Malagasy matter; trimmed scope for burden reasons — limited to Hinks and two Symbion entities (Symbion Power LLC and Symbion Energy Holdings Ltd.) and related documents |
| Whether Court should exercise discretion (Intel factors) to allow discovery for contemplated French proceeding | Bouka: French courts may be limited in discovery; unlikely to obtain all materials absent §1782 | Respondents: Symbion will be a party in French suit and can be ordered to produce the same materials in France; §1782 should not be used to circumvent foreign availability | Court: Intel factors weigh against §1782 relief for French action — evidence likely available from Symbion in France, so denied as to that use |
Key Cases Cited
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) (Supreme Court outlining discretionary factors for §1782 discovery)
- Brandi‑Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76 (2d Cir. 2012) (threshold §1782 requirements and discretionary framework)
- In re Accent Delight Int’l Ltd., 869 F.3d 121 (2d Cir. 2017) (civil party to foreign criminal proceedings may satisfy §1782 "for use" requirement)
- In re Application Pursuant to 28 U.S.C. § 1782, 773 F.3d 456 (2d Cir. 2014) (permitting §1782 discovery for use in foreign criminal investigations)
- Mees v. Buiter, 793 F.3d 291 (2d Cir. 2015) ("for use" requires practical ability to use evidence in the foreign proceeding)
- Certain Funds, Accts., &/or Inv. Vehicles v. KPMG, L.L.P., 798 F.3d 113 (2d Cir. 2015) (proceeding must be "within reasonable contemplation" for §1782)
- Kiobel by Samkalden v. Cravath, Swaine & Moore LLP, 895 F.3d 238 (2d Cir. 2018) (Intel factors not mechanical; participation of target in foreign proceeding weighs against §1782 relief)
- In re Metallgesellschaft AG, 121 F.3d 77 (2d Cir. 1997) (statute's twin aims and discretion to provide assistance)