United States District Court, D. Delaware
In the Matter of the Application of ANTONIO WEI for an Seeking Discovery Under 28U.S.C. § 1782.
Richard L. Renck and Oderah C. Nwaeze, DUANE MORRIS LLP,
Wilmington, DE; Evangelos Michailidis, DUANE MORRIS LLP, New
York, NY, attorneys for Applicant.
Patricia R. Urban, PINCKNEY, WEIDINGER, URBAN, & JOYCE
LLC, Greenville, DE; Janet Kljyan, NEUFELD, O'LEARY &
GIUSTO, New York, NY, attorneys for Hacienda Intercontinental
ANDREWS, U.S. DISTRICT JUDGE
before the Court is Respondent Hacienda
Intercontinental's Motion to Quash Subpoena. (D.I. 12).
The parties have fully briefed the issues. (D.I. 13; D.I. 14;
D.I. 17). For the following reasons, the Court will grant
Respondent's Motion to Quash Subpoena.
Antonio Wei ("Applicant") filed an Ex Parte
Application pursuant to 28 U.S.C. § 1782 on April 16,
2018 seeking discovery for use in a foreign legal proceeding
against his brother, Peter Wei. (D.I. 1). At the time of his
application, Applicant stated that he intended "to file
an action against Mr. Wei in Brazil in connection with his
alleged misconduct in connection with the sale of an
ownership interest in the John Street Building." (D.I. 2
at 9). Applicant sought discovery from Respondent Hacienda
Intercontinental ("Respondent"), a company which
owned the John Street Building at the time of the challenged
sale. (D.I. 2). The Court granted the application on April
26, 2018. (D.I. 4). Respondent filed a Motion to Quash
Subpoena on August 8, 2018. (D.I. 12).
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. .. . The order may be
made . . . upon the application of any interested
person." 28 U.S.C. § 1782(a). Accordingly, three
statutory requirements must be met for this Court to have
authority to compel discovery under § 1782(a): (1) the
party from whom discovery is sought must reside or be found
in the district; (2) the discovery must be for use in a
proceeding before a foreign tribunal; and (3) the application
must be made by an interested person. Id; see also
Schmitz v. Bernstein Liebhard & Lifshitz, LLP, 376
F.3d 79, 83 (2d Cir. 2004).
district court has the authority to compel the production of
evidence under § 1782(a), whether to do so becomes a
matter of discretion. Intel Corp. v. Advanced Micro
Devices, Inc., 542 U.S. 241, 264 (2004). Factors that
inform this discretion are: (1) whether the person from whom
discovery is sought is a participant in the foreign
proceeding; (2) the nature of the foreign tribunal, the
character of the foreign proceedings, and the receptivity of
the foreign government to federal judicial assistance; (3)
whether the request conceals an attempt to circumvent foreign
proof-gathering restrictions or other policies; and (4)
whether the request is unduly intrusive or burdensome.
Id. at 264-65. Courts must also bear in mind the
twin aims of § 1782(a): "providing efficient
assistance to participants in international litigation and
encouraging foreign countries by example to provide similar
assistance to our courts." Id. at 252.
Respondent asserts that the grant of a subpoena under §
1782 is improper for three reasons: (1) the subpoena is
invalid because it was served after the time period set out
in the Court's order (D.I. 4); (2) the subpoena fails to
meet the statutory requirements; and (3) two of the four
Intel factors weigh in favor of quashing the
subpoena. (D.I. 13 at 6).
subpoena is not invalid. Though the subpoena was served on
Respondent roughly a week after the deadline in my order,
Respondent had notice of the subpoena well within the covered
time period. While it is Applicant's responsibility to
ensure that it has properly served the correct party,
Respondent has not alleged that any prejudice has arisen from
the delay. Respondent has been able to file its objections to
the subpoena, as evidenced by its motion to quash. Because no
prejudice has been alleged and Respondent had notice before
the deadline, I find the subpoena valid.
the statutory requirements of § 1782 have not been met.
Respondent asserts that Applicant is not an "interested
person" and that the information sought is not "for
use" in a foreign proceeding. (D.I. 13 at 6). There is
not a foreign proceeding within reasonable contemplation.
While a proceeding need not be pending, nor even imminent to
permit grant of an application under § 1782, see
Intel, 542 U.S. at 259, the applicant must show that a
foreign proceeding is within "reasonable
contemplation." In re Intel Corp. Microprocessor
Antitrust Litig., 2008 WL 4861544, at * 11 (D. Del. Nov.
7, 2008). As Respondent recognizes, an applicant must provide
"reliable indications of the likelihood that proceedings
will be instituted within a reasonable time" for a
proceeding to be within "reasonable contemplation."
Id. at * 16. Retaining counsel and discussing the
possibility of initiating litigation is not enough "to
make an objective showing that the planned proceedings were
within reasonable contemplation." Certain Funds,
Accounts and/or Inv. Vehicles v. KPMG, LLP, 798 F.3d
113, 124 (2d Cir. 2015).
at the time Applicant filed his application, he stated that
"he intends to file an action against Mr. Wei in Brazil
in connection with his alleged misconduct in connection with
the sale of an ownership interest in the John Street
Building." (D.I. 2 at 9). However, Applicant's own
filings with ...