945 F. Supp. 2d 1197
W.D. Wash.2013Background
- Potts seeks judicial assistance under 28 U.S.C. § 1782 to obtain documents from Icicle Seafoods.
- Potts contends BDA undervalued BDA and a sham sale to Acqua, enabling a concealed transfer of profits and payments.
- Potts previously sold a controlling interest in BDA to World Capital Properties (WCP) to keep the business afloat, which he claims was part of a fraud.
- In March 2011 Potts initiated criminal proceedings in Argentina; appellate steps remain possible and ICC arbitration may follow.
- The Court granted Potts’ ex parte application for a subpoena to Icicle; BDA intervened and moved to quash; the matter was converted into a civil case for briefing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the § 1782 application is proper for use in a foreign proceeding | Potts maintains ongoing criminal appellate rights; proceeding remains foreign. | BDA argues appellate exhaustion moots the request. | The application satisfies § 1782 and is not moot. |
| Whether Potts’ criminal proceeding constitutes a foreign proceeding under § 1782 | Proceeding remains ongoing in Argentina; not yet final. | Argentine process may be finished; speculative. | Ongoing Argentine criminal proceeding qualifies as a foreign proceeding. |
| Whether Intel factors weigh against granting the subpoena | Discovery from Icicle is needed; not duplicative; may be relevant. | Factors favoring BDA include receptivity and potential restrictions. | No Intel factor favors BDA; subpoena motion denied. |
| Whether to defer ruling on Pott’s motion to compel and require a protective order | Protective order needed to narrow scope and protect parties. | Discretionary rulings pending protective arrangement. | Motion to compel deferred; parties must submit stipulated protective order by May 8, 2013. |
Key Cases Cited
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (U.S. 2004) (four non-exclusive factors for § 1782 discretionary grant; emphasis on efficiency and comity)
- Schmitz v. Bernstein Liebhard & Lifshitz, LLP, 376 F.3d 79 (2d Cir. 2004) (twin aims of § 1782 and international cooperation)