574 F. App'x 6
2d Cir.2014Background
- Mare Shipping Inc. and Mangouras sought discovery under 28 U.S.C. §1782 for use in foreign proceedings related to the sinking of the Prestige in 2002.
- Declarations prepared for a separate New York Action by Spain’s counsel involved witnesses who testified in the Spanish Action; later testimony suggested inconsistencies with those declarations.
- Appellants learned in 2013 that some declarants’ statements may have been false, prompting a July 8, 2013 §1782 discovery request.
- The District Court denied the discovery request; appellants challenged that denial on Intel factors and potential use in a Querella Criminal Complaint and other foreign fora.
- The Second Circuit reviews jurisdiction and discretion under a two-step framework and affirmed the denial while allowing renewal if circumstances later warrant; it ordered preservation of potential discovery records for five years.
- The court also addressed whether FSIA barred the discovery requests, ultimately concluding that a foreign sovereign’s U.S. counsel is not covered by FSIA, and affirmed the denial without prejudice to renew.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court abused its discretion under Intel in denying §1782 discovery. | Mare argued for broader consideration of potential foreign-use avenues. | Squire argued denial was proper under Intel factors. | Yes, district court acted within its discretion; denial affirmed. |
| Whether FSIA forecloses §1782 discovery served on a foreign sovereign’s U.S. counsel. | Mare contends FSIA bars the discovery requests. | Squire contends FSIA does not apply to foreign sovereign’s U.S. counsel. | FSIA does not foreclose; discovery not barred. |
Key Cases Cited
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) (guides Intel-factor discretionary analysis for §1782 requests)
- Schmitz v. Bernstein Liebhard & Lifshitz, LLP, 376 F.3d 79 (2d Cir. 2004) (jurisdictional and discretionary framework for §1782)
- Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76 (2d Cir. 2012) (two-step review; abuse of discretion includes erroneous view of law)
- In re Sims, 534 F.3d 117 (2d Cir. 2008) (explains abuse of discretion standard for §1782)
- Rep. of Argentina v. NML Capital, Ltd., 134 S. Ct. 2250 (2014) (FSIA framework; sovereign-immunity analysis for immunities)
- EM Ltd. v. Republic of Argentina, 695 F.3d 201 (2d Cir. 2012) (FSIA scope; separation of immunity and discovery)
- Reino de Espana v. American Bureau of Shipping, 691 F.3d 461 (2d Cir. 2012) (context for Spain-related actions)