521 F. App'x 886
11th Cir.2013Background
- Kivisto appeals the district court's denial of his 28 U.S.C. § 1782 subpoena request to Soifer for discovery in aid of a Canadian proceeding on his right to practice in Ontario.
- This is Kivisto's third federal suit challenging his disbarment in Florida.
- The Florida Bar alleged excessive fees, conflict of interest, and conduct involving dishonesty and fraud; Medicaid fraud was dismissed.
- The Florida Supreme Court disbarred Kivisto after he submitted over 120 meritless filings and failed to timely brief on review, leading to sanctions restricting future filings.
- The district court denied the 1782 application as bad faith/fishing expedition, noting Canadian proceedings could proceed independently and finding the request unlikely to aid the Society.
- The Eleventh Circuit reviews discovery denials for abuse of discretion and affirmed the denial, finding the request unlikely to be useful and potentially harassing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court abused its discretion denying the 1782 subpoena. | Kivisto contends Soifer has evidence of conspiracy and the Canadian Society would benefit from the discovery. | Court properly denied fishing expedition; insufficient likelihood of usefulness and potential harassment. | Affirmed; no abuse of discretion. |
| Whether the discovery would be useful or accepted by the Canadian Law Society. | Society would find the information helpful in evaluating Kivisto's fitness to practice. | No showing that the Society intended to pursue a formal proceeding or would find the discovery useful. | Affirmed; not useful. |
| Whether the request was a vehicle for harassment given Kivisto's history of meritless litigation. | Kivisto seeks information to defend ongoing disciplinary matters. | Requests appear vindictive and designed to harass, not assist a foreign proceeding. | Affirmed; denial appropriate. |
Key Cases Cited
- In re Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 685 F.3d 987 (11th Cir. 2012) (limits and procedures for 1782 discovery in aid of foreign proceedings)
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (U.S. 2004) (district court not required to grant 1782 discovery even if authority to do so exists; factors to consider)
- United Kingdom v. United States, 238 F.3d 1312 (11th Cir. 2001) (extremely deferential review of discovery-denial decisions)
- Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d 1095 (2d Cir. 1995) (considerations of bad faith, harassment, and fishing expeditions in 1782 requests)
- In re Request for Assistance from Ministry of Legal Affairs of Trinidad and Tobago, 848 F.2d 1151 (11th Cir. 1988) (fishing expedition and harassment concerns in international discovery)