EL PODER DEL CONSUMIDOR, Petitioner, v. THE COCA-COLA COMPANY, Respondent.
CIVIL ACTION NO. 1:24-cv-03665-TWT-RDC
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION
October 30, 2024
REGINA D. CANNON, United States Magistrate Judge
Petitioner El Poder Del Consumidor, a Mexican consumer-rights organization, seeks this Court’s assistance under
I. BACKGROUND
According to Petitioner, Mexico is currently experiencing a public-health crisis “fueled by the consumption of astonishing amounts of sweetened beverages.” (Doc. 1 at 7). To induce an official response to the crisis, on June 28, 2024, Petitioner filed an administrative complaint with the Mexican Federal Commission for Protection Against Health Risks (Comisión Federal Para La Protección Contra Riesgos Sanitarios, or “COFEPRIS”). (Doc. 1-1; Doc. 18-1).
On July 10, 2024, just twelve days after filing its administrative complaint, Petitioner filed its § 1782 application with this Court. (Doc. 1). It seeks assistance in obtaining certain discovery which it believes is “essential to the full and fair adjudication of the Mexican proceeding.” (Id. at 30). Specifically, Petitioner wants Coca-Cola to produce documents as to the company’s knowledge of the health risks associated with sweetened beverages, along with records related to scientific research and public messaging it conducted regarding such risks. (Doc. 1-2). Notably, Petitioner
Not surprisingly, Coca-Cola opposes the application. (Doc. 12). With briefing complete, the matter is ripe for review.
II. LEGAL STANDARD
Under § 1782, a district court may order discovery from a person or entity residing in the United States for use in a foreign proceeding.
There are two sets of criteria, one statutory and one discretionary, that must be examined before a district court can grant an application under § 1782. First, the statutory elements—these are required:
- the application must be made “by a foreign or international tribunal,” or by “any interested person”;
- the application must seek evidence, whether it be the “testimony or statement” of a person or the production of “a document or other thing”;
- the evidence must be “for use in a proceeding in a foreign or international tribunal”; and
- the person or entity from whom discovery is sought must reside or be found in the district of the district court ruling on the application.
In re Clerici, 481 F.3d 1324, 1331–32 (11th Cir. 2007). If these elements are met, then the district court has authority to assist. Id.
Even if the district court has authority to grant an application, however, it is not required to do so. The matter is discretionary. Id. at 1332. To guide the exercise of that discretion, the Supreme Court has set out the following four factors to consider:
- whether the discovery target is a participant in the foreign proceeding;
- whether the foreign tribunal would be receptive to U.S. federal-court assistance;
- whether the application is an attempt to circumvent foreign proof-gathering restrictions or other policies; and
- whether the discovery request is otherwise unduly intrusive or burdensome.
Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264–66 (2004).
III. DISCUSSION
Coca-Cola says this Court should deny Petitioner’s application on both statutory and discretionary grounds. Review, however, confirms that the statutory factors are satisfied here—this Court therefore has authority to assist. But the undersigned nevertheless finds the circumstances weigh against granting Petitioner’s request at this time. The following discussion will move in sequential order through each of the relevant statutory and discretionary criteria.
A. Statutory Elements
Coca-Cola concedes that three of the four statutory elements (the first, second, and fourth) are met, but it maintains that Petitioner hasn’t shown the remaining element is satisfied. That is, Coca-Cola acknowledges that Petitioner is an “interested person” for purposes of § 1782, that the application seeks evidence, and that it (Coca-Cola) resides in this District. The only dispute concerns the third element—namely, whether the sought-after evidence is “for use in a proceeding in a foreign or international tribunal.” The undersigned finds that it is.
Although Coca-Cola takes issue with just a single statutory element, its argument is threefold. Each iteration of the argument, however, falls flat. To start, Coca-Cola insists there is no “proceeding” underway. That is incorrect. Notably, § 1782 doesn’t require an active proceeding—instead, it is enough if the proceeding is within “reasonable contemplation.” Intel, 542 U.S. at 259 (“[W]e hold that § 1782(a) requires only that a dispositive ruling by the Commission, reviewable by the [foreign] courts, be
Next, Coca-Cola contends that COFEPRIS is not a “tribunal” for purposes of the statute. Again, that is incorrect. Congress has amended § 1782 over time to amplify its range. As currently written, the statute provides for assistance related to judicial and administrative proceedings alike. See Intel, 542 U.S. at 249, 255, 258; Application of Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 747 F.3d 1262, 1269 (11th Cir. 2014) (describing the purpose and evolution of § 1782 and observing that assistance extends to “administrative and quasi-judicial proceedings”). The term “tribunal” is understood functionally, and when applying it to a particular case the reviewing court should consider the following attributes: whether the body “acts as a first-instance adjudicative decisionmaker, permits the gathering and submission of evidence, has the authority to determine liability and impose penalties, and issues decisions subject to judicial review.” Consorcio, 747 F.3d at 1270 n.4.
COFEPRIS is an administrative agency with authority to investigate public-health complaints in the first instance, take and receive relevant evidence, and issue resolutions
Lastly, Coca-Cola contends the sought-after evidence wouldn’t be “for use” in a foreign proceeding because, even if produced, Petitioner has no right to present it to COFEPRIS. Here too, Coca-Cola is off the mark. Petitioner has demonstrated—specifically, with citations to and copies of the governing administrative procedures under Mexican law—its right to present evidence to COFEPRIS. (Doc. 18-2 ¶¶ 12–14 & at 22–23). And such evidence must be considered when COFEPRIS issues its resolution. See (id. at 22 [administrative law provision stating that a public agency must admit evidence permitted by law, “which must be taken into account by the competent body when issuing a resolution”]). No further showing is required. See In re Accent Delight Int’l Ltd., 869 F.3d 121, 132 (2d Cir. 2017) (“[T]he term ‘for use’ in Section 1782 has only its ordinary meaning—that the requested discovery is ‘something that will be employed with some advantage or serve some use in the proceeding.’” (citation
The finer points of Mexican administrative law are beyond the Court’s ken, but resolution of a § 1782 petition doesn’t demand such legal expertise. See In re Request For Judicial Assistance from Seoul Dist. Criminal Ct., Seoul, Korea, 555 F.2d 720, 723 (9th Cir. 1977) (“[O]ur federal courts, in responding to [§ 1782] requests, should not feel obliged to involve themselves in technical questions of foreign law . . . .”). Having carefully considered the evidence adduced, the undersigned finds that all the § 1782 statutory factors are met here. Possessed of statutory authority, then, the Court has discretion to grant or deny assistance. The discussion turns next to the relevant factors.
B. Discretionary Factors
The parties contest all four discretionary factors. The results are, in the undersigned’s estimation, a mixed bag. That said, as will be explained, the collected circumstances tilt against Petitioner at present.
i. First Factor: Participation in the Foreign Proceeding and the Availability of Evidence
The first discretionary factor asks whether the respondent is a participant in the foreign proceeding. This factor is important because § 1782 assistance is more likely to be justified when the discovery target is a nonparticipant and thus more likely to be
Coca-Cola is not a participant in the foreign proceeding, but it nevertheless argues that assistance from this Court would be inappropriate because COFEPRIS can obtain evidence directly from any Coca-Cola partners or subsidiaries in Mexico. Petitioner, for its part, argues that some of the evidence it seeks—like, for example, scientific research on sweetened beverages and corresponding marketing directives—is likely to be discoverable only from Coca-Cola, which is outside COFEPRIS’s jurisdiction.
As mentioned, this Court must consider whether and to what extent the proposed discovery is available to the foreign tribunal. While discovery held by a nonparticipant may be unavailable to the tribunal, that is not always true. See Qualcomm Inc., 162 F. Supp. 3d at 1039 (“The issue of whether an entity is a participant, however, is not dispositive . . . because in some circumstances, evidence may be available to a foreign tribunal even if it is held by a non-participant to the tribunal’s proceedings.”). At least in part, that appears to be the case here.
Even though Coca-Cola itself isn’t a participant in the COFEPRIS proceeding, much of the evidence Petitioner seeks concerns either Mexican bottling partners that are named in Petitioner’s administrative complaint, or Coca-Cola’s Mexican subsidiaries. Such evidence can presumably be obtained directly by COFEPRIS. The need for this Court’s assistance, then, is accordingly reduced. See Macquarie Bank Ltd., 2015 WL 3439103, at *6 (“This [first] factor militates against allowing § 1782 discovery when the petitioner effectively seeks discovery from a participant in the foreign tribunal even though it is seeking discovery from a related, but technically distinct entity.”); In re Jagodzinski, No. 18-20606-MC, 2019 WL 1112389, at *6 (S.D. Fla. Jan. 15, 2019) (“While the parties [to the foreign proceeding and § 1782 application] are not identical, it can be assumed that any information sought from these parties in [the foreign proceeding] would be identical to discovery produced by those named in [the] Section 1782 application.”); In re Ex Parte LG Elecs. Deutschland GmbH, No. 12CV1197, 2012 WL 1836283, at *2 (S.D. Cal. May 21, 2012) (weighing the first factor against assistance because the information could be requested from other parties to the foreign proceeding).
That said, because Coca-Cola is not a participant to the COFEPRIS proceeding and thus may be beyond the agency’s reach, the undersigned finds that this first discretionary factor favors assistance—but only as to evidence in Coca-Cola’s exclusive control. As to evidence available directly from Coca-Cola’s Mexican bottling partners or subsidiaries, this factor weighs against assistance. Those entities are presumably
ii. Second Factor: Nature of the Foreign Tribunal and Receptivity to Assistance
The next discretionary factor considers the nature of the foreign tribunal and its receptivity to § 1782 assistance. The idea is to provide help where reasonably appropriate, without imposing or creating profitless work.
The arguments on this score have already been discussed. Coca-Cola contends that COFEPRIS does not permit the submission of additional evidence. Petitioner disagrees and has submitted persuasive proof in support of its position. Nothing in the record cuts strongly one way or the other—for example, COFEPRIS has neither asked for nor rejected assistance. But because Petitioner has a right under Mexican law to present additional evidence to COFEPRIS during the pendency of its investigation, this factor weighs in Petitioner’s favor.5
iii. Third Factor: Circumvention of Foreign Proof-Gathering Restrictions or Other Policies
Next, the Court must consider whether Petitioner’s application is an attempt to
First, Petitioner is seeking information and testimony regarding Coca-Cola’s Mexican subsidiaries, but Petitioner has failed—conspicuously, in the undersigned’s view—to include these entities in its administrative complaint.6 Second, Petitioner filed its § 1782 application in this Court just twelve days after filing the administrative complaint. Third, Petitioner concedes that COFEPRIS has authority to request evidence directly from Coca-Cola’s Mexican subsidiaries and, what’s more, that it even has its own right to ask COFEPRIS to make such evidentiary requests. (Doc. 18-2 ¶ 28 & at 23). Yet rather than allowing COFEPRIS to take the lead, or nudging it to do so, Petitioner instead decided to quickly file the instant application seeking this Court’s assistance. Meanwhile, there is no sign that COFEPRIS itself has requested any of the proposed discovery. See Advanced Micro Devices v. Intel Corp., No. C 01-7033, 2004 WL 2282320, at *2 (N.D. Cal. Oct. 4, 2004) (denying § 1782 assistance, in part, because the foreign administrative agency had not sought discovery subject to its jurisdiction).
To be sure, as Petitioner points out, there is no exhaustion requirement under § 1782. See In re: Application of Bracha Found., 663 F. App’x 755, 765 (11th Cir.
Petitioner doesn’t counter with an explanation, but simply restates the law—it says it wasn’t required to seek discovery in Mexico before filing its § 1782 application. That’s true, but it does nothing to allay the appearance that Petitioner may be trying to
Another important point to consider here is that the underlying foreign proceeding is not adversarial. Tribunals aren’t fungible. They come in different forms and, significantly, have different purposes. When considering a § 1782 application, courts must always be mindful of the foreign tribunal’s role, rules, and policies. Here’s why that matters. In an adversarial context, each side is tasked with prosecuting its own claims or defenses until the case is resolved on the evidence presented. In that context, evidentiary demands are sharpened by the narrow litigative demands of the case. Cf. In re O’Keeffe, 660 F. App’x 871, 872–74 (11th Cir. 2016) (affirming § 1782 assistance to obtain discovery from a single non-party witness to be used to defend a libel action in Hong Kong); Sergeeva v. Tripleton Int’l Ltd., 834 F.3d 1194, 1196, 1202 (11th Cir. 2016) (affirming § 1782 assistance to an ex-wife who sought discovery about her ex-husband’s assets for use in a Russian proceeding for division of marital assets); Victoria, LLC v. Likhtenfeld, 791 F. App’x 810, 813, 818–19 (11th Cir. 2019) (affirming § 1782 assistance to a debt-collection agency seeking discovery about the debtor’s assets to be used in Russian bankruptcy proceedings and planned civil actions).
But where—as here—the tribunal is an investigative administrative body, the
Courts called on to assist under § 1782 should respect the sovereign autonomy of investigative bodies like COFEPRIS that act with broad public mandates. See Qualcomm Inc., 162 F. Supp. 3d at 1042 and n.87 (denying § 1782 assistance, in part, because the foreign administrative agency indicated that assistance would upset its own investigatory enforcement capabilities, and collecting cases for the proposition that courts should “defer to proceedings taking place in foreign countries”); Advanced Micro Devices, 2004 WL 2282320, at *2 (denying § 1782 assistance, in part, because the foreign tribunal, an administrative agency, indicated that assistance would “jeopardize vital commission interests”).
The situation might be different if Petitioner needed to present its evidence alongside its administrative complaint at the outset of the foreign proceeding. Cf. Consorcio, 747 F.3d at 1266, 1271 (petitioner was required, under foreign law, to submit all its evidence with the pleading at the time the proceeding began); Salcido-Romo, 2016 WL 3213212, at *2 (similar). Or if Petitioner had already asked COFEPRIS to pursue the subset of information within its jurisdiction. Cf. Salcido-Romo, 2016 WL 3213212, at *3 (observing that “Petitioners are taking steps to obtain some of [the
But none of those things happened. Instead, Petitioner initiated a sweeping public-health investigation in Mexico and then rushed to this Court to obtain correspondingly wide-ranging evidence from Coca-Cola and several Mexican partners and subsidiaries, without giving the agency in charge of that investigation an opportunity to decide how best to do its job. The undersigned thus finds this factor weighs against Petitioner.7
iv. Fourth Factor: Discovery Burden
The final discretionary factor asks whether the discovery request is unduly
Coca-Cola insists that Petitioner’s discovery requests are too broad in several respects. First, it says the requests aren’t geographically limited to information concerning operations in Mexico. Next, the temporal scope of the requests isn’t narrowly defined, as Petitioner seeks information dating as far back as 2010. In addition, the requests seek information not just from Coca-Cola but from a host of other bottling partners and subsidiaries, many of which are in Mexico. Petitioner counters that its proposed discovery is reasonably commensurate with the broad scale of its claims and Coca-Cola, “the largest beverage company on Earth,” has the resources necessary to produce the sought-after information.
As noted, the Federal Rules should guide the Court’s analysis here.
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
Starting with relevance—let’s assume the information Petitioner seeks is relevant to the issues raised in its administrative complaint. Having reviewed the complaint and Petitioner’s requests, that much can easily be acknowledged. Moving on, the inquiry next encounters several interrelated questions:
- How important are the issues raised in the administrative proceeding (i.e., the health risks associated with sweetened beverages and Coca-Cola’s alleged disinformation campaign)?
- How important is the proposed discovery to resolving those issues, and what is its likely benefit?
- Is the proposed discovery proportional to the needs of the administrative proceeding?
An attempt by this Court to answer these questions right now—without any additional information about the scope or status of the COFEPRIS investigation—would be little more than groping in the dark. The challenge is compounded given the broad sweep of Petitioner’s proposed discovery.
In the undersigned’s view, the issues raised in the administrative proceeding are indeed significant and merit investigation. But the issues weren’t presented to this Court in the first instance—they were instead presented to an independent foreign tribunal, and this Court’s role under § 1782 is simply to assist with the collection of evidence, as appropriate. COFEPRIS is charged under Mexican law with enforcing that country’s health laws and investigating public-health complaints. The importance of the issues
The role of district courts under § 1782 is to assist, not to adjudicate or anticipate. At this point, given the primary and affirmative obligations of the foreign tribunal, the investigative nature of the foreign proceedings, and the incipient character of those proceedings, the undersigned finds that the proposed discovery would be unduly burdensome. So, this factor also weighs against Petitioner.
Tallying the score, the first two discretionary factors favor Petitioner—albeit mostly with respect to the evidence in Coca-Cola’s exclusive control. Meanwhile, the remaining two factors weigh against Petitioner. Ultimately, however, deference to COFEPRIS’s sovereign investigatory power breaks the tie. COFEPRIS has an important task before it. But at this point, it’s unclear whether COFEPRIS will need or want the proposed discovery when discharging its duty. Further, some indeterminate (perhaps significant) portion of the sought-after evidence falls within its own jurisdictional reach anyway. And it apparently hasn’t yet sought that evidence itself.
It is COFEPRIS’s job to lead—for this Court to act at this juncture would be, in essence, to put the evidentiary cart before the horse. See Qualcomm Inc., 162 F. Supp. 3d at 1042 (“[P]rinciples of comity direct this court not to substitute its own judgment for the [foreign administrative agency] on how to best manage its affairs.”); Norex Petroleum Ltd. v. Chubb Ins. of Canada, 384 F. Supp. 2d 45, 54 (D.D.C. 2005) (“The
IV. CONCLUSION
For the reasons stated, the undersigned RECOMMENDS that Petitioner’s application, (Doc. 1), be DENIED for now, without prejudice to re-filing later, and that Coca-Cola’s motion to dismiss, (Doc. 12), be GRANTED.
IT IS SO RECOMMENDED on this 30th day of October 2024.
REGINA D. CANNON
United States Magistrate Judge
Notes
The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person . . . . To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.