323 F. Supp. 3d 552
S.D. Ill.2018Background
- Petitioner Arturo Escallón seeks discovery under 28 U.S.C. § 1782 from his sister and brother‑in‑law (Patricia and Carlos Ardila) and their New York employee Lucia Galarza concerning various bank accounts (Merrill Lynch in NY, J.P. Morgan in Switzerland) and corporate documents for Clear Pond (Panama) tied to Dr. Gustavo Escallón’s estate.
- The requested discovery is intended for use in multiple Colombian proceedings (probate, an accounting claim, and two criminal complaints including one against Petitioner). Petitioner principally asserted use to defend pending criminal charges in Colombia.
- Petition was filed in S.D.N.Y.; respondents contested service and argued they do not "reside in" nor were "found in" the Southern District, and that the discovery is not "for use in" foreign proceedings as required by § 1782. Galarza was personally served in the district.
- Court found (based on affidavits, process‑server statement, and other evidence) that the Ardilas maintain an apartment in New York but reside in Bogotá and were not physically present in the district when served; occasional use/ownership of a NY apartment was insufficient to show residency.
- Court concluded the requested discovery is not "for use in" the Colombian proceedings because Petitioner failed to show how the materials sought would be usable or relevant to his criminal‑defense theory and appeared to be an impermissible fishing expedition.
- Even assuming statutory prerequisites were met, the court exercised its Intel discretion to deny relief: Ardilas are participants in Colombian proceedings (Colombian courts can compel their testimony), the request seemed designed to circumvent Colombian proof‑gathering limits (seeking a second examination), and compelling foreign residents to travel to NY would be unduly burdensome.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether respondents were "found in" or "reside in" S.D.N.Y. for § 1782 service | Ardila apartment at 28 E. 70th St. and indicia (mail, staff, occasional stays) show residency | Ardilas live in Bogotá, were not physically served in district, occasional NY presence ≠ residence | Denied: Ardilas not "found in" nor "reside in" S.D.N.Y. |
| Whether discovery sought is "for use in" a foreign proceeding under § 1782 | Documents and testimony about accounts and Clear Pond will aid defense in Colombian criminal case | Requested materials have no demonstrated relevance to mens rea or injury elements; Petitioner already had Colombian testimony | Denied: Petitioner failed to show discovery is "for use in" Colombian proceedings |
| Whether § 1782 discretionary Intel factors favor relief | Petitioner argued Colombian courts may be reluctant to obtain foreign docs; thus U.S. aid is needed | Respondents: Colombian courts can and have compelled testimony; request is circumvention and burdensome | Denied in discretion: Intel factors (participant status, circumvention, burden) weigh against relief |
| Whether Galarza should be compelled despite being served in district | Petitioner asserted she could produce relevant documents/testimony | Galarza swore she lacked custody/control/knowledge of requested materials; burden would be undue | Denied: statutory use lacking and discretionary factors bar relief |
Key Cases Cited
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (Sup. Ct. 2004) (sets the discretionary factors for § 1782 applications)
- Brandi‑Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76 (2d Cir. 2012) (recites § 1782 three statutory requirements and discusses Intel factors)
- Certain Funds, Accounts, and And/Or Investment Vehicles v. KPMG LLP, 798 F.3d 113 (2d Cir. 2015) (clarifies burden to show discovery is "for use" in foreign proceeding)
- In re Edelman, 295 F.3d 171 (2d Cir. 2002) (interprets "is found" under § 1782 by reference to Burnham presence rule)
- Burnham v. Superior Court of California, 495 U.S. 604 (Sup. Ct. 1990) (plurality) (physical presence for service supports personal jurisdiction and informs "is found" analysis)