In re Application of Barnwell Enterprises, No. 16-mc-2581 (D.D.C. July 13, 2017) [click for opinion]

Petitioners, an individual and his private investment company, sought discovery under 28 U.S.C. § 1782 from a private equity firm manager located in the District of Columbia. The discovery was for use in pending lawsuits in Uganda and Mauritius, and possibly in proceedings to be filed in other foreign jurisdictions. The U.S. District Court for the District of Columbia granted the application, noting the somewhat "unusual" setting: a single application by two Petitioners to obtain discovery for use in two separate but related proceedings—one brought by the individual and one brought by his company.

Respondent conceded that the court had authority to grant the application, so the court's analysis focused solely on whether it should exercise its discretion to do so, applying the four Intel factors: (1) whether the discovery target is a participant in the foreign proceedings, (2) the nature and receptivity of the foreign tribunals and the character of the foreign proceedings, (3) whether the application was an attempt to circumvent proof-gathering restrictions, and (4) the scope of the discovery request. The court found that all four factors favored granting the application.

First, although Respondent's subsidiary was a party in the foreign proceeding, Respondent was not, and the court found no evidence that Petitioner was attempting to pierce the corporate veil between the two entities. The court also found that there was no reason to believe that Respondent was within the jurisdictional reach of the courts in either Mauritius or Uganda, or that the evidence would be attainable there absent the § 1782 request. Second, Respondent could not point to authoritative proof that that the foreign tribunal would reject the evidence sought. Third, the court observed that § 1782 does not require that the material sought be discoverable or even admissible in the foreign proceedings and so rejected Respondent's argument that the foreign courts prohibit the use of the discovery sought.

Finally, the court found that Petitioners had proposed satisfactory limitations to the subject matter and scope of their original discovery requests—specifically, seeking discovery related only to four Respondent employees. While observing that the international location of documents has been interpreted to be a discretionary factor weighing against granting a § 1782 request, the court noted that this was not a per se bar on the discovery of material located outside the United States. Indeed, the plain language of § 1782 contains no such limitation, but instead provides that discovery may be taken and produced "in accordance with the Federal Rules of Civil Procedure," which require production of relevant documents in the respondent's "possession, custody or control." Distinguishing cases where a petitioner attempted to force a parent company to repatriate documents held abroad by a party to the foreign proceedings, the court here found no reason to reject the application simply because it might require the production of documents currently located in other countries.