In re Leret, No. 13-mc-939, 2013 U.S. Dist. LEXIS 144915 (D.D.C. Oct. 7, 2013) [click for opinion]

28 U.S.C. § 1782 allows a party to a foreign legal proceeding to apply to an American court to obtain evidence for use in the foreign proceeding. Applicants filed a motion under § 1782 seeking discovery from Alvaro Roche Cisneros for use in three actions pending in Venezuela.  The Venezuelan proceedings involved a dispute among the shareholders of Los Principitos, a Venezuelan corporation.  Applicants maintained that, because Roche resided in Washington, D.C., they could not obtain discovery from him through the Venezuelan courts.

In considering an application under 28 U.S.C. § 1782, the court must determine “first, whether it is authorized to grant the request, and second, whether it should exercise its discretion to do so.”  The court determined that it had the authority to grant the application because the statutory prerequisites had been satisfied: Roche resided in D.C., the district where the application was made; it was undisputed that the discovery sought was for use in ongoing proceedings in Venezuela; and the application was made by "interested persons" with respect to the foreign actions.

The court nevertheless exercised its discretion to deny the application.  In response to the § 1782 application, Roche had offered to “submit to the Venezuelan courts in the Venezuelan Actions for discovery consistent with Venezuelan procedures, and to be subject to the same discovery in the Venezuelan Actions as any party resident in Venezuela who appears before that country’s courts” and had agreed not to raise any personal jurisdiction or process-related defenses in the Venezuelan courts. Applicants failed to explain why they refused to accept this offer. 

The court stated that in light of the fact that Roche had agreed to the very discovery sought, a denial of the application was in keeping with the twin goals of § 1782: providing “efficient assistance to participants in international litigation” and encouraging “foreign countries by example to provide similar assistance to our courts.”  The court concluded that the greatest assistance it could provide to all the parties involved was to exercise its discretion to facilitate the resolution of the pending discovery requests by the Venezuelan courts, where the actions were filed.