DIGIULIAN et al v. CULLEN
Filing
7
MEMORANDUM OPINION, signed by Magistrate Judge Robin M. Meriweather on 4/23/2018. (lcrm2)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
IN RE APPLICATION OF SASHA
DIGIULIAN AND JOHN CHARLES
DIGIULIAN FOR SUBPOENA
FOR DOCUMENTS AND TO PRODUCE
TESTIMONY FROM EDWARD T.
CULLEN, M.D.
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) Case No.: 1:17-mc-3327 (RMM)
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MEMORANDUM OPINION
Petitioners Sasha DiGiulian and John Charles DiGiulian (“Petitioners”) seek an order
from the Court, pursuant to 28 U.S.C. § 1782, approving the issuance of a subpoena that would
direct Dr. Edward T. Cullen (“Respondent” or “Dr. Cullen”) to produce medical records and
appear and testify at a deposition. See Ex Parte Pet. for Order Produce Docs. and Test. for Use
in Foreign Proceeding (“Petition”) at 1, ECF No. 1. Petitioners intend to use this discovery to
challenge the validity of their paternal grandmother’s will in a proceeding pending before a court
in Quebec, Canada. See id.; Pet’rs’ Mot. for Entry Order Authorizing Subpoenas (“Mot. for
Entry Order”), ECF No. 3. Dr. Cullen did not oppose the Petition, and appears to have
voluntarily provided some of the records that Petitioners seek. See Mot. for Hr’g Regarding
Entry Order Authorizing Subpoenas and Dep. (“Mot. for Hr’g II”) ¶ 4, ECF No. 6. Having
considered the Petition, related filings,1 and applicable law, the Court GRANTS the Petition.
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Pet., ECF No. 1; Mot. for Entry Order; Mot. for Hr’g II; Mot. for Hr’g Regarding Entry Order
Authorizing Subpoenas and Dep. (“Mot. for Hr’g I”), ECF No. 4; Suppl. Mem. in Supp. Request
Authorization Issue Subpoenas for Records and Dep. (“Suppl. Mem.”), ECF No. 5.
BACKGROUND
On December 14, 2017, Petitioners filed an ex parte petition pursuant to 28 U.S.C.
§ 1782, seeking an order authorizing the issuance of discovery for use in a foreign proceeding in
Canada. See Pet. at 1. Specifically, Petitioners wish to issue a subpoena to compel Dr. Cullen to
appear for a deposition and produce certain medical records. See id. In the Petition, Petitioners
advised the Court that they “imminently” intended to file an action in Quebec Superior Court
challenging the validity of the April 29, 2015 will of their paternal grandmother, Rita DiGiulian,
based on her alleged mental incapacity and undue influence. Id.; Pet., Ex. A (“Steinberg Decl.”)
¶¶ 6, 13, ECF No. 1-2. Petitioners have since advised the Court that they filed the action in the
Quebec court on February 15, 2018. Mot. for Hr’g I ¶ 7.
At the time of her death on January 27, 2017, Rita DiGiulian jointly owned a piece of real
estate in Quebec, Canada, with Petitioners’ mother, Andrea DiGiulian. See Steinberg Decl. ¶ 12.
Petitioners indicate that they have possession of two wills purportedly endorsed by Rita
DiGiulian as her last will and testament that pertain to this jointly owned property: (1) a March
21, 2013 will providing that Petitioners, as issue of Rita DiGiulian’s predeceased son and
Petitioners’ father, would each receive 50 percent of Rita DiGiulian’s joint ownership interest in
the property; and (2) an April 29, 2015 will, altering the 2013 will and divesting Petitioners of all
interest in Rita DiGiulian’s joint ownership interest in the property. Id. ¶ 13. Petitioners also
assert that Rita DiGiulian exhibited signs of dementia during a June 5, 2015 video deposition
taken in an unrelated matter. Id. ¶ 15; Mem. in Supp. Pet. (“Mem. in Supp.”) at 2, ECF No. 1-1.
Petitioners note that in this deposition, Rita DiGiulian was unable to recognize or identify her
own lawyer or remember personal details, including her birth date, her residence at the time, and
her grandchildren’s names. Steinberg Decl. ¶ 15.
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Petitioners state that from 2013 to 2017, Dr. Cullen served as Rita DiGiulian’s primary
care physician. Steinberg Decl. ¶ 18. Prior to the June 5 video deposition, Dr. Cullen allegedly
described Rita DiGiulian’s health as fragile. See Mem. in Supp. at 2. Petitioners assert that for
these reasons, Dr. Cullen’s records and testimony regarding Rita DiGiulian are relevant and
necessary for their Canadian proceeding. Pet. at 1–2; Steinberg Decl. ¶ 23. Specifically, in
addition to deposition testimony, Petitioners seek the following documents from Dr. Cullen:
1.
Rita DiGiulian’s medical records from January 1, 2013 through June 30,
2015, including, but not limited to all notes, charts, test results or other
writings;
2.
All letters, correspondence, emails, and other documents between Dr.
Cullen’s and/or his office and third persons in which Dr. Cullen references
Rita DiGiulian’s medical/mental state, from January 1, 2013 through June
30, 2015;
3.
All records, letters, correspondence, emails, and other documents received
by Dr. Cullen and/or his office related to Rita DiGiulian’s treatment, and/or
upon which Dr. Cullen or his office relied, related to Rita DiGiulian’s
medical treatment, from January 1, 2013 through June 30, 2015;
4.
All prescriptions written by Dr. Cullen for Rita DiGiulian from January 1,
2013 through June 30, 2015;
5.
All medical referrals by Dr. Cullen for Rita DiGiulian from January 1, 2013
through June 30, 2015; and
6.
All other documents and/or things in Dr. Cullen’s possession, custody or
control, that are relevant to Rita DiGiulian’s mental and/or medical state
between January 1, 2013 and June 30, 2015.
Mem. in Supp. at 3.
On December 28, 2017, the Court entered an Order to Show Cause directing Petitioners
to serve the Order and the Petition upon Dr. Cullen, and directing Dr. Cullen to file a response by
January 22, 2018 if he intended to oppose the Petition. See Order to Show Cause, ECF No. 2.
Petitioners timely served the Order and Petition on Dr. Cullen by facsimile and by hand delivery
to his office in Bethesda, Maryland. See Mot. for Entry Order ¶¶ 4–5 & Exs. A–C. Dr. Cullen
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has filed no opposition, and Petitioners represent that Dr. Cullen has voluntarily provided some
of the requested medical records. Mot. for Hr’g II ¶ 4. In accordance with a request from the
Court, Petitioners also filed a supplemental memorandum regarding the rationale for their
identification of January 1, 2013 to June 30, 2015 as the relevant time frame for the documents
sought. See 2/28/2018 Minute Order; Suppl. Mem.
LEGAL STANDARD
28 U.S.C. § 1782 authorizes district courts to order a person who resides or is found
within the district “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 . . . . upon the application of any
interested person.” 28 U.S.C. § 1782(a). The statute does not, however, authorize the Court to
compel a person “to give his testimony or statement or to produce a document or other thing in
violation of any legally applicable privilege.” Id. Absent a court order to the contrary, the
compelled discovery must be taken or produced “in accordance with the Federal Rules of Civil
Procedure.” Id.
The court “is not required to grant a § 1782(a) discovery application simply because it
has the authority to do so.” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264
(2004). Rather, the court must consider “first, whether it is authorized to grant the request, and
second, whether it should exercise its discretion to do so.” Norex Petroleum Ltd. v. Chubb Ins.
Co. of Canada, 384 F. Supp. 2d 45, 49 (D.D.C. 2005) (citing Intel, 542 U.S. at 264); see also In
re Barnwell Enters. Ltd., 265 F. Supp. 3d 1, 8 (D.D.C. 2017) (citing Lazaridis v. Int’l Ctr. for
Missing & Exploited Children, Inc., 760 F. Supp. 2d 109, 112 (D.D.C. 2011)).
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DISCUSSION
I.
The Court’s Authority to Grant the Request
The Court’s authority to grant a request for discovery under Section 1782 turns on the
following three criteria: “(1) the person from whom discovery is sought must reside in or be
found within the district; (2) the discovery must be for use in a proceeding before a foreign or
international tribunal; and (3) the application must be made by a foreign or international tribunal
or any interested person.” In re Leret, 51 F. Supp. 3d 66, 70 (D.D.C. 2014) (citing 28 U.S.C. §
1782(a)); see also In re Barnwell, 265 F. Supp. 3d at 8–9; Lazaridis, 760 F. Supp. 2d at 112.
The Petition satisfies all three requirements.
First, the record indicates that Dr. Cullen, from whom the Petitioners seek documents and
testimony, resides or may be found in the District of Columbia. Public real estate records from
the District of Columbia list Dr. Cullen’s residence as an address in Northwest Washington, D.C.
See Steinberg Decl. ¶ 19; see also Mem. in Supp. at 5. Dr. Cullen neither opposed the Petition
nor disputed Petitioners’ representations regarding his residence. Thus, although Dr. Cullen
maintains an office in Bethesda, Maryland, his status as a D.C. resident brings him within the
Court’s authority under Section 1782. Cf. In re Leret, 51 F. Supp. 3d at 70 (finding the condition
met where individual’s residence was uncontested).
Second, the record clearly indicates that Petitioners intend to use the requested discovery
in a foreign tribunal. Petitioners seek records and testimony from Dr. Cullen in connection with
a Quebec Superior Court action challenging the validity of Rita DiGiulian’s 2015 Canadian will.
See Mem. in Supp. at 5; Steinberg Decl. ¶ 14. Section 1782 does not require proceedings to be
“pending” or “imminent,” and permits courts to authorize discovery provided that the foreign
proceedings are “within reasonable contemplation” when the request for judicial assistance is
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filed. Intel, 542 U.S. at 258–59 (also noting by parenthetical, “[i]t is not necessary . . . for the
[adjudicative] proceeding to be pending at the time the evidence is sought, and that the statute
requires only that the evidence is eventually to be used in such a proceeding” (alteration in
original) (quoting Hans Smit, International Litigation Under the United States Code, 65 Colum.
L. Rev. 1015, 1026 (1965))); see also Lazaridis, 760 F. Supp. 2d at 112. Petitioners clearly
contemplated filing a matter in a foreign tribunal at the time the Petition was filed, and
Petitioners subsequently initiated the action in the Quebec Superior Court on February 15, 2018.
See Mem. in Supp. at 5; Mot. for Hr’g I ¶ 7. Accordingly, Petitioners meet the second
requirement.
Third, and finally, Petitioners are “interested persons” in the Quebec Superior Court
action. See Mem. in Supp. at 6. Petitioners initiated that action to contest the validity of their
paternal grandmother’s April 2015 will and may benefit if that will is declared invalid. See id.;
Steinberg Decl. ¶¶ 11–14. In sum, Petitioners satisfy each of the statutory criteria, and this Court
has the authority to grant Petitioners’ request.
II.
The Court’s Exercise of its Discretion
Having concluded that the Court has the authority to grant Petitioners’ request, the Court
next must decide whether to exercise its discretion to do so. The Supreme Court has outlined
four factors which may “bear consideration” as part of this analysis: (1) whether “the person
from whom discovery is sought is a participant in the foreign proceeding . . . [if so] the need for
§ 1782(a) aid generally is not as apparent as it ordinarily is when evidence is sought from a
nonparticipant in the matter arising abroad”; (2) “the nature of the foreign tribunal, the character
of the proceedings underway abroad, and the receptivity of the . . . court . . . abroad to U.S.
federal-court judicial assistance”; (3) “whether the § 1782(a) request conceals an attempt to
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circumvent foreign proof-gathering restrictions or other policies of a foreign country or the
United States”; and (4) whether the request is “unduly intrusive or burdensome.” Intel, 542 U.S.
at 264–65. The Supreme Court neither mandated that lower courts weigh those factors, nor
“articulate[d] a formula for their consideration.” In re an Order Pursuant to 28 U.S.C. § 1782 to
Conduct Discovery for Use in a Foreign Proceeding, No. 17-1466 (BAH), 2017 WL 3708028, at
*3 (D.D.C. Aug. 18, 2017); see also HT S.R.L. v. Velasco, 125 F. Supp. 3d 211, 222 (D.D.C.
2015) (quoting Intel, 542 U.S. at 264–65) (noting that the “Supreme Court has declined ‘to adopt
supervisory rules’”). Nonetheless, the Court will use the Intel framework to evaluate the
Petition, while remaining mindful of “§ 1782(a)’s twin aims of providing efficient assistance to
participants in international litigation and encouraging foreign countries by example to provide
similar assistance to our courts.” Intel, 542 U.S. at 252 (citation omitted) (internal quotation
marks omitted); see also In re Barnwell, 265 F. Supp. 3d at 9 (citing Lazaridis, 760 F. Supp. 2d
at 114).
A.
Dr. Cullen’s Involvement in the Canadian Proceeding
Section 1782 provides a means of procuring evidence from individuals who are not
participants in foreign proceedings and thus “may be outside the foreign tribunal’s jurisdictional
reach.” Intel, 542 U.S. at 264. Petitioners aver that Dr. Cullen is not a participant in the
Canadian proceedings and that he is neither a citizen nor a resident of Canada. See Mem. in
Supp. at 6–7; Steinberg Decl. ¶ 22. Accordingly, Dr. Cullen would be a “third-party fact witness
and/or expert witness in the Canadian proceedings.” Mem. in Supp. at 7. Although Dr. Cullen
has provided some records to Petitioners voluntarily, Petitioners and the Canadian court lack the
“legal authority to command [Dr. Cullen’s] attendance[,] his production of documents,” or his
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testimony. Steinberg Decl. ¶ 22. Therefore, this factor weighs in favor of granting Petitioners’
request.
B.
Nature of the Foreign Tribunal, Character of the Proceedings, and
Receptivity of the Court
The Court next evaluates whether the nature of the foreign tribunal, the character of the
proceedings, and the receptivity of the court to U.S. judicial assistance weigh in favor of granting
Petitioners’ request. See Intel, 542 U.S. at 264. The proceedings are before the Quebec Superior
Court, which is the proper forum in which to “challenge the validity of a will based upon
capacity and undue influence.” Steinberg Decl. ¶ 14. As one would expect such proceedings to
involve the submission and exchange of factual evidence regarding the decedent’s mental and
physical health, the nature of the proceedings favors granting Petitioners’ request. See generally
In re Barnwell, 265 F. Supp. 3d at 11–12 (favorably noting that petitioners would likely be
permitted to present evidence and engage in discovery in the foreign proceedings); In re
Caratube Int’l Oil Co., 730 F. Supp. 2d 101, 106 (D.D.C. 2010) (concluding nature of tribunal
counseled against granting request where parties had agreed to arbitration and the procedural
rules governing that process).
“To determine whether the character of the foreign proceeding favors permitting
discovery, courts analyze how far along the foreign suit is in the discovery process.” HT S.R.L.,
125 F. Supp. 3d at 223. The proceedings in Canada began in February 2018, and the discovery
request was made in anticipation of these proceedings. See Mem. in Supp. at 5; Mot. for Hr’g I
¶ 7. The fact that Petitioners promptly sought this discovery, and that the Canadian proceedings
have not been pending for long, weighs in favor of granting Petitioners’ request. See HT S.R.L.,
125 F. Supp. 3d at 223–24 (concluding character of proceedings weighed in favor of granting
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request where foreign proceeding was in its early stages and the petitioners sought discovery
without delay).
Finally, when assessing the receptiveness of the foreign court to U.S. judicial assistance,
it is not necessary to conduct an “extensive examination of foreign law regarding the existence
and extent of discover in the forum country.” In re Caratube, 730 F. Supp. 2d at 105–06
(quoting In re Euromepa, S.A., 51 F.3d 1095, 1099 (2d Cir. 1995)) (internal quotation marks
omitted). Instead, the court “should consider only authoritative proof that a foreign tribunal
would reject evidence obtained with the aid of section 1782.” Id. (internal quotation marks
omitted); see also In re Barnwell, 265 F. Supp. 3d at 10–11. Here, nothing in the record suggests
that the Canadian court would reject evidence obtained through this request. See Mem. in Supp.
at 7. To the contrary, Mr. Steinberg asserts, based on his years of experience practicing in that
jurisdiction, that “the Quebec Superior Court would accept Dr. Cullen’s records and
testimony . . . so long the rules of evidence and civil procedure are followed.” Steinberg Decl.
¶ 21. Therefore, this factor weighs in favor of granting Petitioners’ request. See In re Barnwell,
265 F. Supp. 3d at 11 (quoting In re Veiga, 746 F. Supp. 2d 8, 24 (D.D.C. 2010)) (concluding
receptiveness of foreign tribunal weighed in favor of granting discovery given the absence of any
“clear and unequivocal indication that the foreign tribunal would not be receptive to the evidence
sought”).
C.
Whether the Request is an Attempt to Circumvent Foreign Proof-Gathering
Restrictions or Other Policies
The third Intel factor considers whether Petitioners’ request is an attempt to circumvent
foreign proof-gathering restrictions or other policies. See Intel, 542 U.S. at 264–65. When
evaluating this factor, courts may consider whether the party attempted to obtain discovery in the
foreign jurisdiction before seeking discovery through Section 1782. See In re Caratube, 730 F.
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Supp. 2d at 107. However, “litigants are not required to seek discovery through the foreign
tribunal prior to requesting through the United States.” HT S.R.L., 125 F. Supp. 3d at 225–26;
see also In re Veiga, 746 F. Supp. 2d at 24. As discussed above, given Dr. Cullen’s status as a
non-resident and non-citizen of Canada, the Quebec Superior Court lacks the authority to compel
Dr. Cullen to testify or produce records. See Steinberg Decl. ¶ 22; see also Mem. in Supp. at 8.
Nothing in the record indicates that the rules and procedures governing Quebec Superior Court
proceedings would preclude parties from obtaining such evidence from individuals who are
subject to that court’s jurisdiction. Accordingly, the Petition is not an attempt to improperly
circumvent foreign procedural rules or evidentiary restrictions, and this factor weighs in favor of
granting Petitioners’ request.
D.
Whether the Request is Unduly Intrusive or Burdensome
The fourth Intel factor evaluates the scope of the requested discovery, asking whether it is
“unduly intrusive or burdensome.” Intel, 542 U.S. at 265 (noting that “unduly intrusive or
burdensome requests may be rejected or trimmed”). Courts have interpreted this inquiry to
encompass “the relevance of the requested discovery to the foreign proceeding.” In re an Order
Pursuant to 28 U.S.C. § 1782, 2017 WL 3708028, at *4 (citing In re Veiga, 746 F. Supp. 2d at
19).
Petitioners seek to subpoena Dr. Cullen for a deposition and the production of medical
records reflecting Dr. Cullen’s treatment of Rita DiGiuilian between January 1, 2013 and June
30, 2015. See Mem. in Supp. at 3. Petitioners have explained that the medical records from this
time period are relevant to establishing Rita DiGiulian’s medical and mental state at three
significant moments: (1) when she testified at a deposition on June 5, 2015 deposition; (2) when
she executed a will on April 29, 2015 will; and (3) when she executed a will on March 21, 2013.
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See Suppl. Mem. ¶¶ 5–7. Petitioners further assert that they wish to depose Dr. Cullen so that he
can provide testimony regarding his “records, observations, and/or opinions.” Id. ¶ 9.
Petitioners and their counsel intend to use Dr. Cullen’s records and testimony “to investigate and
prepare the Petitioners’ action; to provide grounds for expert witness review and potential expert
opinions; and . . . as substantive evidence in the action.” Steinberg Decl. ¶ 20 & ¶ 23 (noting
relevance of “medical testimony and/or medical records of the testator’s treating physician . . . to
the testator’s mental capacity”).
The discovery Petitioners seek is clearly relevant to the issues in dispute in the Quebec
Superior Court proceeding and is narrowly tailored to provide facts Petitioners need to contest
the will. The fact that Dr. Cullen has voluntarily provided some of the information Petitioners
seek, and has not objected to the Petition, indicates that the request is not unduly burdensome.
Therefore, this factor weighs in favor of granting the Petition. In sum, the Intel factors all
counsel in favor of granting the Petition, and the Court will exercise its discretion to do so.
CONCLUSION
For the foregoing reasons, the Court hereby GRANTS Petitioners’ Ex Parte Petition for
Order to Produce Documents and Testimony for use in a Foreign Proceeding, ECF No. 1;
DENIES as moot Petitioners’ Motion for Entry of Order Authorizing Subpoenas, ECF No. 3; and
DENIES as moot Petitioners’ Motion for Hearing Regarding Entry of Order Authorizing
Subpoenas and Deposition, ECF No. 6. A separate Order will accompany this Memorandum
Opinion.
Dated:
Digitally signed by Robin M.
Meriweather
Date: 2018.04.23 18:11:13 -04'00'
April 23, 2018
ROBIN M. MERIWEATHER
UNITED STATES MAGISTRATE JUDGE
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