Optimal Investment Services, S.A. v. Berlamont
773 F.3d 456
| 2d Cir. | 2014Background
- Berlamont, a Swiss complainant, seeks U.S. documentary discovery for use in a Swiss criminal investigation involving a Madoff feeder fund.
- The Jaitly Documents came from discovery in Rembaum v. Banco Santander, S.A., No. 10 Civ. 4095 (S.D.N.Y.).
- The District Court granted the § 1782 ex parte application and ordered production; later motions to vacate were denied.
- Berlamont’s Swiss investigation is overseen by an investigating magistrate; he stated the Jaitly Documents would be useful.
- Appellants challenge whether § 1782 covers a foreign criminal investigation and argue Hague Convention, comity, and Swiss attorney-client privilege defenses.
- The district court and the court below held that § 1782 permits discovery for use in a foreign criminal investigation conducted before an investigating magistrate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does § 1782 authorize discovery for use in a foreign criminal investigation conducted by an investigating magistrate? | Berlamont argues yes under the statute's text and history. | Appellants contend no, Swiss magistrate is not a foreign tribunal. | Yes, § 1782 covers foreign criminal investigations conducted by investigating magistrates. |
| Is the foreign investigative magistrate a "foreign or international tribunal" under § 1782? | Berlamont treats the magistrate as a tribunal adequate to satisfy the statute. | Appellants dispute that role under the statute. | Yes, investigating magistrates fall within § 1782’s scope. |
| Should other defenses (Hague Convention, comity, privilege) defeat § 1782 discovery here? | Swiss proceeding usefulness supports discovery. | These defenses undermine the appropriateness of discovery. | No, the other challenges lack sufficient merit against § 1782 discovery. |
| Did the district court abuse its discretion in granting discovery? | Application satisfied statutory requirements and public interest. | Undertakings could be excessive or improper. | No abuse of discretion; discovery proper. |
Key Cases Cited
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (U.S. 2004) (statutory scope and purpose of § 1782; broad availability of discovery)
- Lancaster Factoring Co. v. Mangone, 90 F.3d 38 (2d Cir. 1996) (designs of § 1782 to aid foreign tribunals)
- In re Letters Rogatory, 385 F.2d 1017 (2d Cir.1967) (recognition of investigating magistrates as tribunals under § 1782)
- Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76 (2d Cir. 2012) (two-step test for § 1782 discovery; abuse of discretion standard)
- In re Sims, 534 F.3d 117 (2d Cir.2008) (abuse-of-discretion standard for discovery rulings)
- Schmitz v. Bernstein Liebhard & Lifshitz LLP, 376 F.3d 79 (2d Cir.2004) (statutory interpretation and discretion in § 1782 rulings)