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In re Application of Savan Magic Ltd.

United States District Court, D. Nevada

December 18, 2017

IN RE APPLICATION OF SAVAN MAGIC LTD. TO TAKE DISCOVERY PURSUANT TO 28 U.S.C. § 1782

          ORDER

          NANCY J. KOPPE UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is a motion to compel discovery filed by Petitioner Savan Magic. Docket No. 34. Respondent Norman Bentley filed a response in opposition, and Petitioner filed a reply. Docket Nos. 38, 40. The motion is properly resolved without a hearing. See Local Rule 78-1. For the reasons discussed more fully below, the motion to compel is GRANTED.[1]

         I. BACKGROUND

         Given the parties' familiarity, the Court provides only a brief recitation of the background. Petitioner is engaged in litigation in Singapore against Defendants Sanjay Pandya, Templar Metal Traders, and Sandstone International. See, e.g., Docket No. 35 at ¶ 3 (Decl. of Michael Jason Lee). The crux of that action is the claim that Defendants stole $1, 000, 000 from Petitioner through fraudulent transfers. See, e.g., id. Pandya has responded by alleging, inter alia, that it was actually Petitioner and/or Sanjeev Chhabra who are responsible for the theft of the funds. See Id. at ¶ 9.

         With respect to obtaining discovery in the Singaporean litigation, Petitioner has not been entirely successful. Sandstone International has defaulted in that litigation, and is therefore not participating in discovery. Id. at ¶ 5. Templar Metal Traders and Pandya have generally refused to produce responsive documents by claiming, inter alia, that they no longer possess the documents because of a server malfunction. See, e.g., id. at ¶¶ 7, 11-13. Making matters worse, Petitioner itself no longer possesses some of its own relevant documents because of its document retention policy, the operation of which resulted in deletion of relevant documents. Id. at ¶ 14.

         Against that backdrop, Petitioner sought relief from this Court to obtain discovery from Respondent in Nevada. On June 16, 2017, Petitioner sought an ex parte order permitting it to subpoena Respondent for documents and to submit for deposition, pursuant to 28 U.S.C. § 1782. Docket No. 1. On June 22, 2017, the Court denied that petition without prejudice for failing to sufficiently establish that Respondent resides or is found in this District. Docket No. 3. On June 26, 2017, Petitioner renewed its request for an ex parte order. Docket No. 4. On June 27, 2017, the Court granted the motion and permitted Petitioner to serve the identified discovery. Docket No. 8. The Court expressly provided, however, that Respondent would be permitted to challenge the discovery once it was served both with respect to whether it should be allowed at all under § 1782 and the scope of the discovery that should be allowed. Id. at 2.

         On July 12, 2017, Petitioner served the subpoena. Docket No. 25 at ¶ 4. On July 28, 2017, Respondent filed a motion to quash the subpoena. Docket No. 12. On July 31, 2017, the Court ordered the parties to continue their meet-and-confer efforts. Docket No. 13. On August 11, 2017, Petitioner withdrew its initial subpoena and, on August 14, 2017, served an amended subpoena on Respondent. See Docket No. 24 at ¶¶ 22-24. On September 6, 2017, the Court denied as moot the then-pending motion in light of the newly issued subpoena. Docket No. 31. The Court ordered that any remaining dispute be presented through a newly filed motion to compel. Id. at 2. Petitioner thereafter filed a motion to compel compliance with the amended subpoena, which is the motion now pending before the Court. Docket No. 34.[2]

         II. STANDARDS

         Courts are authorized to allow discovery pursuant to § 1782 once the enumerated statutory requirements have been satisfied. See, e.g., Schmitz v. Bernstein Liebhard & Lifshitz, LLP, 376 F.3d 79, 83-84 (2d Cir. 2004). Even where those statutory requirements have been satisfied, however, the Court is not required to grant the § 1782 petition. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264 (2004). Instead, it analyzes several discretionary factors to determine whether the discovery sought should be allowed. See Id. at 264-65.

         Section 1782 provides in relevant part that:

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 . . . upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court.

28 U.S.C. § 1782(a). Pursuant to this statutory language, courts are authorized to permit discovery pursuant to § 1782 application where: (1) the person from whom discovery is sought resides or is found in this District; (2) the discovery is for use in a proceeding before a foreign or international tribunal; and (3) the application is made by a foreign or international tribunal or any interested person. Pott v. Icicle Seafoods, Inc., 945 F.Supp.2d 1197, 1199 (W.D. Wash. 2013).

         If the Court has determined that it has the statutory authority to grant the request, then it turns to whether it should exercise its discretion to do so. Lazaridis v. Int'l Ctr. for Missing & Exploited Children, Inc., 760 F.Supp.2d 109, 112, (D.D.C. 2011). “Congress gave the federal district courts broad discretion to determine whether, and to what extent, to honor a request for assistance under 28 U.S.C. § 1782.” Four Pillars Enterps. Co. v. Avery Dennison Corp., 308 F.3d 1075, 1078 (9th Cir. 2002). The discretionary factors that district courts should consider when ruling on a § 1782 application include:

(1) whether the material sought is within the foreign tribunal's jurisdictional reach and thus accessible absent §1782 aid;
(2) the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court jurisdictional assistance;
(3) whether the ยง1782 request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a ...

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