In Re MTS Bank
ORDER granting in part and denying in part 14 Motion to Quash. Signed by Magistrate Judge Edwin G. Torres on 8/1/2017. (js02)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-21545-MC-WILLIAMS/TORRES
IN RE APPLICATION OF MTS BANK,
PURSUANT TO 28 U.S.C. § 1782,
FOR JUDICIAL ASSISTANCE IN
OBTAINING EVIDENCE FOR USE
IN A FOREIGN AND INTERNATIONAL
ORDER ON MOTION TO QUASH SUBPOENAS
This matter is before the Court on Alexander Pleshakov’s (“Mr. Pleshakov”)
and Sky Ocean International, Inc.’s (“Sky Ocean”) (collectively, the “Non-Parties”)
Motion to Quash Subpoenas (“Motion”) from MTS Bank (“MTS”) pursuant to 28
U.S.C. § 1782 and Rule 45(d)(3) of the Federal Rules of Civil Procedure. [D.E. 14].
On July 13, 2017, MTS responded to the Non-Parties’ Motion [D.E. 16] to which the
Non-Parties replied on July 20, 2017. [D.E. 17]. Therefore, the Non-Parties’ Motion
is now ripe for disposition. After careful consideration of the Motion, response,
reply, relevant authority, and for the reasons discussed below, the Non-Parties’
Motion is GRANTED in part and DENIED in part.
MTS is a foreign bank registered in the Russian Federation. MTS had prior
business and financial dealings with a private Russian airline company, commonly
referred to as Transaero – a company also registered in the Russian Federation.
Transaero is currently the subject of bankruptcy proceedings pending in Arbitrazh
Court, Saint Petersburg, Russia. MTS is a creditor of Transaero, who was notified
of the Russian bankruptcy, filed a claim in bankruptcy, and is a party to those
Mr. Pleshakov is the founder and a former CEO of Transaero. Alongside his
spouse Olga Pleshakov and his mother Tatiana Anodina, Mr. Pleshakov has been
the majority shareholder of Transaero.
The family also indirectly owned
Transaero’s shares through various entities, including Sky Stream Corporation, a
company registered in the British Virgin Islands. In 2010, Mr. Pleshakov founded
Sky Ocean, a Florida profit corporation.
Sky Ocean was wholly owned by Sky
Stream, which in turn was wholly owned by Mr. Pleshakov.
In 2010, Transaero’s management approached MTS to open a line of credit
for the purpose of expanding commercial operations.
Mr. Pleshakov signed
Transaero’s financial reports and allegedly made representations of the company’s
Olga Pleshakov and Alexander Krinichansky negotiated the
loans and purportedly assured MTS of the company’s solvency and signed the loan
agreements on the company’s behalf. MTS then issued the initial line of credit to
Transaero in 2010, and subsequent loans were extended each year until its sudden
bankruptcy in 2015. In November 2010, two months after MTS opened its initial
line of credit to Transaero, Sky Ocean purchased a multi-million dollar property at
2700 N. Ocean Drive, Unit 702A, Rivera Beach, Palm Beach County, Florida 33404
(the “Rivera Beach property”). The cost of maintaining the Rivera beach property
was between $150,000 and $200,000 per year. At all relevant times, Mr. Pleshakov
was purportedly an officer of Sky Ocean. And Transaero’s major shareholder Sky
Stream was the parent company and the sole shareholder of Sky Ocean.
Stream is wholly owned by Mr. Pleshakov.1
At the time of filing the bankruptcy petition, Transero owed MTS over fiftyseven million U.S. dollars and the debt remains unpaid while the bankruptcy case
Following the bankruptcy application, MTS Bank supposedly
conducted a forensic audit of Transaero’s accounting records and documents
submitted in support of the credit line applications. The audit allegedly revealed
widespread falsifications of data and hidden operational losses in Transaero’s
financials. The funds obtained from creditors were purportedly siphoned out of
Transaero through creative financial structures, accounting loopholes, and
payments of unlawfully inflated dividends to Transaero’s shareholders, including
Mr. Pleshakov and Sky Stream.
On April 26, 2017, MTS filed an ex parte application to obtain evidence from
persons and custodians of records in Florida for use in the Russian bankruptcy
court and in a contemplated civil action against Transaero’s former directors and
shareholders in the British Virgin Islands and/or Russia for debt recovery,
securities fraud, civil money laundering, conversion, and other claims. [D.E. 1].
MTS is seeking to obtain documents and to depose Mr. Pleshakov on issues related
to irregularities in financial statements, payments of dividends, transfers of funds
According to MTS, Sky Stream has allegedly been the sole shareholder of Sky
Ocean until January 1, 2016, and Mr. Pleshakov is currently the sole shareholder of
received from MTS to personal U.S. based accounts and reinvestment in U.S.
businesses. [D.E. 3-2].
The subpoenas in this case specify the areas of questioning
and list specific documents that have been requested.
MTS is also seeking to depose a corporate representative of Sky Ocean to
explore Sky Ocean’s relationship to Transaero’s shareholders Mr. Pleshakov and
Sky Stream, the corporate structure of the entities affiliated with Transaero, the
reinvestment of MTS’s funds in the Rivera Beach property, and any unlawful
diversion of MTS’s funds from a legitimate aviation company’s activities to U.S.
based personal bank accounts, businesses, and Florida real estate. MTS expects the
discovery to supplement Transaero’s financial records and reveal that Sky Ocean
was used as a vehicle for reinvestment of illegally gotten funds.
Additional subpoenas have been issued to Bank of America, Chase Bank,
Citibank, TD Bank, and Wells Fargo Bank (the “Florida Banks”) named in the
application seeking banking records that are expected to reflect monetary flows to
U.S. based personal and business accounts of the Pleshakovs. The documents are
allegedly necessary to trace the disposition of MTS’s funds because the Pleshakovs
purportedly signed Transaero’s fraudulent accounting reports, loan applications,
and received funds from Transaero in the form of inflated dividends.
On June 6, 2017, the Court entered an Order granting the ex parte
application and permitted MTS to conduct discovery. On June 8, 2017 and June 10,
2017, the Non-Parties were served at Sky Ocean’s registered address. Sky Ocean’s
representative, Marina Katz, accepted the subpoenas. The Non-Parties’ counsel
purportedly confirmed the receipt of the subpoenas when he requested an extension
for filing a motion to quash. On June 19, 2017, MTS served Bank of America,
Chase Bank, TD Bank, and Wells Fargo Bank. MTS served Citibank on June 28,
2017. On June 24, 2017, Bank of America informed Sky Ocean that it intends to
produce Sky Ocean’s records pursuant to the subpoena. Sky Ocean responded by
Serving Bank of America with its motion to quash and the bank stayed the
production pending the resolution of the Motion.
The gist of the Non-Parties’ Motion is that the subpoenas should be quashed
because (1) Mr. Pleshakov neither resides nor can be found in the District as
required by 28 U.S.C. § 1782, (2) the discretionary factors set forth in Intel weigh in
favor of the Non-Parties and the Florida Banks, (3) MTS failed to properly serve Mr.
Pleshakov, and (4) the subpoena directed to Mr. Pleshakov violates the geographical
limitations of Rule 45(c).
The Statutory Requirements of Section 1782
The first issue in the Non-Parties’ Motion is that the subpoenas should be
quashed for failing to comply with the statutory requirements of 28 U.S.C. § 1782.
The purpose of § 1782 is “to provide federal-court assistance in gathering evidence
for use in foreign tribunals.” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S.
241, 247 (2004); see also In the Matter of Lancaster Factoring Co., Limited, 90 F.3d
38, 41 (2d Cir. 1996) (finding that the purposes of § 1782 are “equitable and
efficacious procedures in United States courts for the benefit of tribunals and
litigants involved in foreign litigation” and “to encourag[e] foreign countries by
example to provide similar assistance to our courts.”) (internal citations omitted).
The statute “is the product of congressional efforts, over the span of nearly 150
years, to provide federal-court assistance in gathering evidence for use in foreign
tribunals.” Id. at 248.
Pursuant to section 1782, a United States District Court, upon the
application of an interested person, may order a person residing or found in the
district to give testimony or produce documents for use in a foreign proceeding:
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 pursuant to a letter
rogatory issued, or request made, by a foreign or international tribunal
or 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. By virtue of his
appointment, the person appointed has power to administer any
necessary oath and take the testimony or statement. The order may
prescribe the practice and procedure, which may be in whole or part
the practice and procedure of the foreign country or the international
tribunal, for taking the testimony or statement or producing the
document or other thing. To the extent that the order does not
prescribe otherwise, the testimony or statement shall be taken, and
the document or other thing produced, in accordance with the Federal
Rules of Civil Procedure.
28 U.S.C. § 1782.
As an initial matter, a district court must first determine whether there is a
statutory basis for the § 1782 application. The Eleventh Circuit has found that
there are four statutory requirements that must be considered in making that
A district court has the authority to grant an application for judicial
assistance if the following statutory requirements in § 1782(a) are met:
(1) the request must be made ‘by a foreign or international tribunal,’ or
by ‘any interested person’; (2) the request must seek evidence, whether
it be the ‘testimony or statement’ of a person or the production of ‘a
document or other thing’; (3) the evidence must be ‘for use in a
proceeding in a foreign or international tribunal’; and (4) the person
from whom discovery is sought must reside or be found in the district
of the district court ruling on the application for assistance. 28 U.S.C. §
In re Clerici, 481 F.3d 1324, 1331–32 (11th Cir. 2007).
If the statutory
requirements are met, district courts must always determine whether the requested
discovery complies with the Federal Rules. “For example, if the subpoena at issue is
directed to a party that resides or is found in the district, same must comply with
Fed. R. Civ. P. 45.” In re Chevron Corp., 2012 WL 3636925, at *6 (S.D. Fla. June 12,
2012) (citing In re Application of Inversiones v. Gasolinera Petroleos Vanezuela, S.
De R.L., 2011 WL 181311, at * 6 (S.D. Fla. Jan. 9, 2011)). Assuming that all of the
above requirements are met, section 1782 “authorizes, but does not require, a
federal district court to provide judicial assistance to foreign or international
tribunals or to ‘interested person[s]’ in proceedings abroad.” Intel Corp., 542 U.S. at
247 (emphasis added); see also United Kingdom v. United States, 238 F.3d 1312,
1319 (11th Cir. 2001) (“[A] district court’s compliance with a § 1782 request is not
In addition to the statutory requirements, district courts must also consider
several discretionary factors articulated by the Supreme Court in Intel, including:
(1) whether the respondents are parties in a foreign proceeding, (2) the nature of the
foreign tribunal, the character of the proceedings abroad, and the receptivity of the
foreign tribunal to assistance from a U.S. federal court, (3) whether the discovery
application conceals an attempt to circumvent foreign proof-gathering restrictions
or other policies of a foreign country or the United States, and (4) whether the
request is intrusive or burdensome. See Intel Corp., 542 U.S. at 264-65. Ultimately,
district courts must exercise their discretion to achieve the two aims of section 1782,
which are to “provid[e] efficient means of assistance to participants in international
litigation and [to] encourage[e] foreign countries by example to provide similar
means of assistance to our courts.” In re Metallgesellschaft, 121 F.3d 77, 79 (2d Cir.
The Non-Parties argue that the final statutory requirement set forth in 28
U.S.C. § 1782(a) is not met in this action because Mr. Pleshakov resides in
Azerbaijan and the European Union. In other words, Mr. Pleshakov allegedly does
not “reside” nor can he be “found” in this district as required under the statute. Mr.
Pleshakov claims that he is not a citizen or a permanent resident of the United
States, nor does he have an entry visa that might authorize him to enter and/or
remain in the United States. He also suggests that he does not reside anywhere in
the United States and that he has not been to the United States for at least three
years. As such, the Court purportedly lacks subject matter jurisdiction over Mr.
[F]or purposes of Gazprom’s § 1782(a) application for assistance, the
evidence shows that at the time of Gazprom’s application filing, Pivert
did not and still does not reside in this Court's jurisdiction, nor did he,
nor does he, have any intention of any lengthy, no less permanent
residence here. As indicated supra, the evidence shows that Pivert
cannot now be found nor at any reasonable time in the future is it
likely he would be found in this district within the meaning of § 1782.
Therefore the Court lacks subject matter jurisdiction over Pivert and
must deny Gazprom’s application.
In re: Application of Gazprom Latin Am. Servicios, C.A., 2016 WL 3654590, at *12
(S.D. Tex. July 6, 2016).
In response, MTS argues that Mr. Pleshakov can be found in Florida for
several reasons. First, Mr. Pleshakov is the sole owner of a Florida corporation, Sky
Ocean. Second, Mr. Pleshakov purportedly maintains a corporate address, has a
corporate registered agent for service of process for Sky Ocean, and received the
relevant subpoenas through his agent. Third, MTS contends that Mr. Pleshakov
maintains at least one business bank account for Sky Ocean.
Pleshakov supposedly serves as an officer of Sky Ocean and lists himself on each
annual report. And fifth, Mr. Pleshakov has allegedly litigated in Florida state
courts and owns real estate in Florida. For all of the aforementioned reasons, MTS
suggests that it is clear that Mr. Pleshakov can be “found” in Florida within the
meaning of section 1782.
As an initial matter, the first statutory requirement under section 1782 is
easily met because MTS is undeniably a party in an ongoing Russian bankruptcy
proceeding and will be a plaintiff in a contemplated debt recovery/civil fraud action.
The second requirement is also met because MTS seeks testimony and documentary
evidence as listed in the subpoenas.
Third, the evidence is sought for the use in a
Russian bankruptcy court, which is obviously a foreign tribunal within the
statutory definition of § 1782.
See, e.g., In re: Application of Joint Stock Co.
Raiffeinsenbank, 2016 WL 6474224, at *3 (N.D. Cal. Nov. 2, 2016) (“‘[T]he discovery
is for use in a proceeding before a foreign tribunal’ because RFB seeks to use the
discovery gained from Zubarev in the Russian Proceedings before the Arbitrazh
Courts in Russia.”). Therefore, MTS has met the first three statutory requirements.
Yet, the parties strongly disagree as to whether the final statutory
requirement – whether Mr. Pleshakov “resides” or can be “found” in this district –
has been satisfied.2 As support for its position, MTS relies on the decision in In re
Application of Inversiones y Gasolinera Petroleos Vanezuela, S. de R.L., 2011 WL
181311, at *8. In that case, the respondent, Exxon, argued that in the context of an
action brought under section 1782, it could not be “found” in the district because its
corporate headquarters were not located in Florida. Judge Simonton disagreed and
held that that the statutory language of being “found” under section 1782 is almost
the equivalent of being found in the jurisdiction for the purpose of personal
jurisdiction. See id. (“[I]n the case at bar, since it is undisputed that Exxon is
subject to personal jurisdiction in this District by virtue of its continuous and
systematic activities, the undersigned concludes that Exxon is “found” here within
the meaning of section 1782.”). In reaching that holding, Judge Simonton relied on
the Second Circuit’s decision in In re Application of Edelman, 295 F.3d 171 (2d Cir.
In Edelman, the Second Circuit recognized that the statutory language of
being “found” must be liberally interpreted and is satisfied when a non-party person
There is no dispute between the parties that the Florida banks can be “found”
in this district.
travels to the United States and is served with a subpoena for a deposition. The
Second Circuit explained that “if so-called tag jurisdiction was sufficient to subject a
person to liability, it was sufficient to subject a potential witness to discovery
proceedings.” 2011 WL 181311, at *8 (citing Edelman, 295 F.3d at 179-80; In re
Application of Yukos Hydrocarbons Invs. Ltd., 2009 WL 5216951 (N.D.N.Y. Dec. 30,
2009); Hans Smit, American Assistance to Litigation in Foreign and International
Tribunals: Section 1782 of Title 28 of the U.S.C. Revisited, 25 Syracuse J. Int’l. L. &
Com. 1, 10 (1998) (“The evident statutory purpose [of section 1782] is to create
adjudicatory authority based on presence.”)).
MTS argues that the same reasoning can be applied in this case.
Pleshakov is supposedly subject to the Court’s jurisdiction based on his business
activities, financial transactions, and most importantly his ownership of real
property in the district. Specifically, MTS relies on Florida Statute section 48.193
that provides jurisdiction to Florida courts for individuals that own any real
property in the state:
(1)(a) A person, whether or not a citizen or resident of this state, who
personally or through an agent does any of the acts enumerated in this
subsection thereby submits himself or herself and, if he or she is a
natural person, his or her personal representative to the jurisdiction of
the courts of this state for any cause of action arising from any of the
3. Owning, using, possessing, or holding a mortgage or other lien on
any real property within this state.
Fla. Stat. § 48.193 (emphasis added). The fact that Mr. Pleshakov owns property in
the state of Florida is allegedly sufficient by itself to satisfy the section 1782
jurisdictional requirement of being “found” in this district. When coupled with the
fact that he (1) maintains a corporate address with a corporate agent, (2) retains a
Florida bank account, (3) and litigates in Florida state courts, MTS believes that is
clear that Mr. Pleshakov can be “found” in Florida within the meaning of section
Yet, we disagree with MTS that the final statutory requirement in section
1782 has been met with respect to Mr. Pleshakov. MTS is certainly correct that the
question of what it means to “reside” or be “found” in a locale has been broadly
interpreted based on common sense understandings of the words, and relevant case
law on territorial jurisdiction.3 And it is also evident that the relationship between
section 1782 and the contours of personal jurisdiction are not the same. While the
Second Circuit and Judge Simonton have previously held that a person may be
“found” for the purpose of section 1782 when he or she is served in a manner
consistent with conferring personal jurisdiction, this does not necessarily equate the
Those decisions merely “stated that a person is ‘found’ in a
jurisdiction for purposes of § 1782(a) if he is personally served while physically
present in the jurisdiction.” In re Godfrey, 526 F. Supp. 2d 417, 421 (S.D.N.Y. 2007)
(citing Edelman, 295 F.3d at 179). “This does not indicate an intention to make the
availability of discovery under § 1782 subject to the vagaries of individual states’
For example, in Burnham v. Superior Court of California, 495 U.S. 604
(1990), the Supreme Court authorized the exercise of personal jurisdiction based on
nothing more than physical presence. See also Kadic v. Karadzic, 70 F.3d 232, 246–
47 (2d Cir. 1995) (upholding the Southern District’s exercise of personal jurisdiction
over foreign national served with summons while physically present in the
rules of service of process and personal jurisdiction. On the contrary, it merely
represents a common sense holding that one who is personally served with process
while present in a district is ‘found’ in that district for the purpose of foreign
In re Godfrey, 526 F. Supp. 2d at 421; see also In re
Application of Thai-Lao Lignite (Thailand) Co., Ltd., 821 F. Supp. 2d 289, 295
(D.D.C. 2011) (“Courts considering whether to grant a petition for assistance
pursuant to 28 U.S.C. § 1782 have analyzed their authority by referencing the
language in section 1782—whether it is a district ‘in which a person resides or is
found’—rather than discussing whether the Court has subject matter and personal
jurisdiction over the entity or person from whom discovery is sought.”).
The evidence that MTS relies upon does not establish in any way that Mr.
Pleshakov “resides” or can be “found” in this district. All of the evidence proffered
in connection with Mr. Pleshakov relates solely to Sky Ocean. For example, MTS
alleges that Mr. Pleshakov maintains a corporate address, has a corporate
registered agent, maintains at least one business bank account, has litigated in
Florida state court, owns real estate in Florida, and was personally served with the
subpoena. Yet, the Brown Declaration and the related exhibits that supposedly
evidence these claims instead show that only Sky Ocean – not Mr. Pleshakov – has
engaged in all the aforementioned activity.
As such, MTS has no evidence to
establish that Mr. Pleshakov meets the final statutory requirement under section
1782. To this extent, the Non-Parties’ Motion, as it relates to Mr. Pleshakov, must
Alternatively, MTS requested in its response that in the event the Court
found that the evidence proffered was insufficient to satisfy the jurisdictional
requirement of section 1782 that it be allowed to take limited discovery in order to
establish facts related to Mr. Pleshakov’s residence and activities in Florida. It is
well established that “[a] qualified right to conduct jurisdictional discovery is
recognized in the Eleventh Circuit.” Bernardele v. Bonorino, 608 F. Supp. 2d 1313,
1321 (S.D. Fla. 2009) (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351
n.13 (1978) (“Where issues arise as to jurisdiction or venue, discovery is available to
ascertain facts bearing on such issues.”); Eaton v. Dorchester Development, Inc., 692
F.2d 727, 729 (11th Cir. 1982) (“[J]urisdictional discovery is not entirely
discretionary ... a court does not have discretion to grant or deny a request for
jurisdictional discovery [when jurisdictional facts are in dispute].”)).
Because the Eleventh Circuit favors limited discovery where there is a
genuine dispute concerning jurisdiction, we agree that MTS should be at least
afforded a chance to establish sufficient facts that establish that Mr. Pleshakov
“resides” or can be “found” in this district. See Majd–Pour v. Georgiana Community
Hosp., Inc., 724 F.2d 901, 903 (11th Cir. 1984) (“Although the plaintiff bears the
burden of proving the court’s jurisdiction, the plaintiff should be given the
opportunity to discover facts that would support his allegations of jurisdiction”).
Next, we turn our attention to the issue of whether the four statutory
requirements have met under section 1782 with respect to Sky Ocean and the
Florida Banks. As stated earlier, MTS seeks to depose a corporate representative of
Sky Ocean to explore Sky Ocean’s relationship to Transaero’s shareholders Mr.
Pleshakov and Sky Stream, the corporate structure of the entities affiliated with
Transaero, the reinvestment of MTS’s funds in the Rivera Beach property, and any
unlawful diversion of MTS’s funds from a legitimate aviation company’s activities to
U.S. based personal bank accounts, businesses, and Florida real estate.
expects the discovery to supplement Transaero’s financial records and reveal that
Sky Ocean was used as a vehicle for reinvestment of illegally gotten funds.
The Florida Banks did not file any objections to the subpoenas. The only
objection that Sky Ocean makes is that the Court should consider the Intel
discretionary factors, claiming that at least three of the factors weigh in favor of
Sky Ocean because (1) Sky Ocean is not a participant to the Russian bankruptcy
proceedings, the subpoenas circumvent Russian law, and (3) the subpoenas are
overly broad and unduly intrusive.
Although neither Sky Ocean nor the Florida Banks challenge the subpoenas
on the basis that they fail to meet the statutory requirement of section 1782, we will
still determine whether there is a proper basis to enforce the subpoenas under the
Sky Ocean is a single-purpose entity that was formed on or about
December 27, 2010 to purchase and take title to certain residential real property
located in Palm Beach County, Florida. On July 29, 2014, a former officer of Sky
Ocean caused the property to be sold and nearly all of the proceeds from that sale,
constituting nearly all of the company’s initial capital to be wired to an offshore
account in the name of a third party.
Without rehashing all of the four requirements under section 1782, we find
that, unlike Mr. Pleshakov, all of the statutory requirements have been met in
connection with Sky Ocean and the Florida Banks.
The only statutory specific
requirement is whether the person from whom discovery is sought “resides” or can
be “found” in this district. Here, there is no doubt that the Florida Banks meet this
The banks are based in Florida, conduct substantial financial
transactions in the state, and were personally served with the relevant subpoenas.
As such, we need not delve into any additional discussion on whether the Florida
Banks fall under section 1782.
As for Sky Ocean, the Non-Parties appear to suggest at one point in their
reply brief that the entity does not “reside” or can be “found” within the district
because its property was sold in July 2014. Yet, based on the unrebutted evidence
presented, Sky Ocean (1) maintains a corporate address with a corporate agent, (2)
retains a Florida bank account, (3) and litigates in Florida state courts.
Furthermore, Sky Ocean was personally served with a subpoena in this action,
which – as discussed above – is enough to confer jurisdiction over the entity under
section 1782. See, e.g., Edelman, 295 F.3d at 179. When coupled together, there is
no doubt that Sky Ocean is subject to personal jurisdiction in this district by virtue
of its continuous and systematic activities. See In re Application of Inversiones y
Gasolinera Petroleos Vanezuela, S. de R.L., 2011 WL 181311, at *8. Therefore, we
find that all four statutory requirements under section 1782 have been met in
connection with Sky Ocean and the Florida Banks.
Intel’s Discretionary Factors
Once the statutory requirements of § 1782 have been met, district courts
must also consider the four discretionary factors set forth in Intel, including: (1)
whether the respondents are parties in a foreign proceeding because “the need for §
1782(a) generally is not as apparent as it ordinarily is when evidence is sought from
a nonparticipant,” (2) the nature of the foreign tribunal, the character of the
proceedings abroad, and the receptivity of the foreign tribunal to assistance from a
U.S. federal court, (3) whether the discovery application conceals an attempt to
circumvent foreign proof-gathering restrictions or other policies of a foreign country
or the United States, and (4) whether the request is intrusive or unduly
burdensome. Intel Corp., 542 U.S. at 264-65. While the four factors are commonly
discussed on an individual basis, they “are not stand-alone categorical imperatives”
but rather “involve overlapping considerations, [which] are considered collectively
by the court.” In Matter of Appl. of Action & Protection Found. Daniel Bodnar, 2014
WL 2795832, *5 (N.D. Cal. June 19, 2014) (quotation omitted).
The First Factor: Parties in a Foreign Proceeding
The Non-Parties argue that the first Intel factor weighs in their favor because
Sky Ocean has never been a participant in the Russian bankruptcy proceedings and
has never received any dividends or income from Transaero. The Non-Parties also
contend that neither Sky Ocean nor its officers were parties or guarantors of the
loans at issue. In response, MTS suggests that the Non-Parties are confused on the
law in claiming that they are not participants to the Russian bankruptcy and that
this somehow benefits them.
To the contrary, MTS believes that being a non-
participant weighs in its favor because it suggests that Sky Ocean and the Florida
Banks are non-parties and outside of the jurisdictional reach of the foreign tribunal.
It is well established that “[t]he need for § 1782 assistance is more apparent
when discovery is sought from a non-participant.”
In re Sergeeva, 2013 WL
12169388, at *10 (N.D. Ga. Nov. 22, 2013); see also In re Clerici, 481 F.3d at 1335
(“In many § 1782 cases, the person from whom discovery is sought is a
nonparticipant in the foreign proceeding and outside the jurisdiction of the foreign
tribunal.”) (citing United Kingdom v. United States, 238 F.3d 1312, 1314 (11th Cir.
2001) (seeking sensitive law enforcement documents possessed by the United States
to be used in a criminal prosecution in England); Lo Ka Chun v. Lo To, 858 F.2d
1564, 1565 (11th Cir. 1988) (seeking the issuance of subpoenas duces tecum to
residents of the United States who were non-party witnesses in an action pending
in Hong Kong); In re Request for Assistance from Ministry of Legal Affairs of
Trinidad & Tobago, 848 F.2d 1151, 1152 (11th Cir. 1988) (seeking authenticated
copies of bank records from non-party bank)).
We agree with MTS that the first Intel factor favors the use of section 1782
because the Florida banks and Sky Ocean – by the Non-Parties’ own admission –
are nonparticipants in the Russian bankruptcy proceedings. If Sky Ocean or the
Florida banks were part of the foreign proceedings, it may have been an indicator
that we should be less inclined to grant the discovery request because both would
have already been subject to the jurisdiction of the foreign tribunal. Because there
is no dispute that Sky Ocean or the Florida banks are non-participants in the
Russian bankruptcy proceedings, we will proceed to the second, third, and fourth
Intel factors to determine if they also weigh in favor of MTS. See In re Roz Trading
Ltd., 2007 WL 120844, at *2 (N.D. Ga. Jan. 11, 2007) (“Respondent is not a party to
the arbitration, and on this ground alone the first Intel factor is satisfied.”).
The Second Factor: Receptivity of the Foreign Tribunal
The second Intel factor examines whether the foreign tribunal “is willing to
consider the information sought.” Siemens AG v. W. Digital Corp., 2013 WL
5947973, *3 (C.D. Cal. Nov. 4, 2013). Another nation’s limit on discovery “within its
domain for reasons peculiar to its own legal practices, culture, or traditions . . .
do[es] not necessarily signal objection to aid from United States federal courts.”
Intel, 542 U.S. at 261 (citing In re Bayer AG, 146 F.3d 188, 194 (3d Cir. 1998)
(“[T]here is no reason to assume that because a country has not adopted a
particular discovery procedure, it would take offense at its use.”)).
Instead, courts look for “authoritative proof that a foreign tribunal would
reject evidence obtained with the aid of § 1782.” In re Kreke Immobilien KG, 2013
WL 5966916, at *5 (S.D.N.Y. Nov. 8, 2013) (quoting Euromepa S.A. v. R. Esmerian,
Inc., 51 F.3d 1095, 1100 (2d Cir. 1995)).
“Such proof, as embodied in a forum
country’s judicial, executive, or legislative declarations that specifically address the
use of evidence gathered under foreign procedures . . . provide helpful and
appropriate guidance to a district court in the exercise of its discretion.” Euromepa,
51 F.3d at 1100 (footnotes omitted); Schmitz v. Bernstein Liebhard & Lifshitz, LLP.,
376 F.3d 79, 84 (2d Cir. 2004) (denying discovery because “the German government
was obviously unreceptive to the judicial assistance of an American federal court”
since it requested the court to deny petitioner’s § 1782 application); In re Ex Parte
Application of Qualcomm Inc., 162 F. Supp. 3d 1029, 1040 (N.D. Cal. 2016) (finding
that the second Intel factor weighed in favor of respondents because the Korean
Fair Trade Commission’s amicus brief asked the court to deny petitioner’s
applications and that it had no need or use for the requested discovery). “Absent
this type of clear directive, however, a district court’s ruling should be informed by
section 1782’s overarching interest in ‘providing equitable and efficacious
procedures for the benefit of tribunals and litigants involved in litigation and
international aspects.’” Euromepa, 51 F.3d at 1100 (citation omitted).
As support for his position that the discovery sought is wholly improper
under Russian law and its corresponding discovery practices, the Non-Parties rely
on the declaration of Igor Sergeevich Udalischev. Mr. Udalischev is a citizen of the
Russian Federation and a duly licensed lawyer who practices and has expertise in
handling and litigating Russian court proceedings, including permissible proofgathering and discovery practices. According to Mr. Udalischev, per Russian law
and procedures, once a corporate debtor is placed into bankruptcy proceedings, it is
allegedly the Russian court’s function to determine and establish whether the entity
is, in fact, bankrupt. Until such a determination is made, creditors in Russian
bankruptcy proceedings purportedly have no right to file, litigate, or pursue claims
against, nor seek independent discovery of any kind from a debtor.
During the pendency of Russian bankruptcy proceedings, Mr. Udalischev
claims that the pursuit and satisfaction of a creditor’s claims remain limited.
Creditors in bankruptcy proceedings are supposedly permitted to exercise their
rights to pursue and satisfy their claims only by either direct involvement or
participation at a meeting of creditors or indirectly through an elected council of
creditors. However, no matter how a creditor proceeds, a creditor purportedly has
no right to perform or undertake any action whatsoever aimed at establishing,
preserving, saving, or investigating/tracing a debtor’s property or assets, as those
functions are reserved and performed solely by the Russian bankruptcy trustee.
Furthermore, the Non-Parties argue that Russian bankruptcy creditors lack
the ability, power, or right to pursue any discovery whatsoever directly from a
corporate debtor under any circumstances. A creditor’s inability to seek discovery
allegedly extends to a corporate debtor’s former executives, directors, employees,
managers, and shareholders.
Hence, the Non-Parties contend that it is
impermissible and inappropriate for Russian bankruptcy creditors to seek discovery
of any kind directly from corporate debtors, including former executives, employees,
or management body members or shareholders.
Bankruptcy creditors are also
supposedly not permitted to initiate any judicial proceeding or action of any kind to
attempt to discovery or obtain any financial property holdings, or any other
economic information of any kind about a corporate debtor from the debtor itself nor
any other independent source.4 Given the extensive limitations under Russian law,
the Non-Parties suggest that the subpoenas must be quashed.
MTS strongly disputes the legal reasoning and conclusions found in the NonParties’ Motion. MTS relies on the declaration of Denis Vetrov – a qualified jurist
practicing law in Russia.
Mr. Vetrov concludes in his declaration that Russian
courts are absolutely receptive to discovery obtained in foreign jurisdictions and
that several provisions under Russian law explicitly support this position.
example, Article 66(a) of the Russian Code provides that “[e]vidence shall be
presented by the persons participating in a case.
Copies of the documents
submitted to court by a person participating in a case shall be directed to other
persons participating in the case if they do not have these documents.” [D.E. 15].
MTS also relies on Article 75 that provides that “[a] document obtained in a
foreign state shall be recognized by an arbitration court as written evidence if it is
legalized in the established procedure.” [D.E.15]; see also Article 255 (“Documents,
issued, compiled or certified in accordance with the stablished form by the
competent bodes of foreign states out of the boundaries of the Russian Federation in
conformity with the norms of foreign law with respect to Russian organizations and
citizens, or to foreign persons, shall be accepted by arbitration courts in the Russian
Federation, if said documents are legalized, or if an apostille is placed on them,
unless otherwise is established by an international treaty of the Russian
These limitations also allegedly extend to a Russian bankruptcy trustee who
cannot request any information regarding the activities or financial information of a
corporate debtor from the corporation’s former executives, employees, or
management body members nor from its individual shareholders.
Federation.”) (emphasis added). Because several sections of Russian law allow for
the use of foreign discovery, MTS suggests that the third Intel factor clearly weighs
in its favor.
After a complete review of the expert declarations, the arguments presented,
and the authority cited therein, we agree that the Non-Parties’ arguments are
unpersuasive. First, the Non-Parties rely on the declaration of Mr. Udalischev for
the proposition that Russian law bars outside discovery, yet the Non-Parties fail to
cite a single Russian provision that supports that conclusion. At one point, Mr.
Udalischev paraphrases Article 66 of the Russian Code in support of the position
that under no circumstances are creditors permitted to request information from
any individuals. Mr. Udalischev states in his declaration that “per clause 2, Article
66 of the Law, a Russian bankruptcy trustee does not have the right, ability, nor
power to request any information regarding the activities or financial of a corporate
debtor from the corporation’s former executives, employees, or management body
members nor from its individual shareholders.” [D.E. 11-6]. Yet, Article 66 simply
lists the powers of an interim receiver during the bankruptcy stages. None of the
language in Article 66 – especially in clause 2 – prohibits creditors or a trustee from
seeking discovery from third parties:
1. The interim receiver shall be entitled to: lodge a demand with a
court of arbitration in his/her name for declaring as null and void the
deals and decisions, and also a demand for the application of
consequences of the invalidity of the null and void deals concluded or
accomplished by the debtor in breach of the provisions of Articles 63
and of the present Federal Law; lodge objections to creditors’ claims in
the cases specified by the present Federal Law; attend arbitration
court hearings dedicated to verification of the availability of a good
ground for the debtor’s lodged objections to creditors’ claims; file a
petition with a court of arbitration for the taking of additional
measures for preserving the debtor’s property, in particular, for an
injunction on the accomplishment of deals without the consent of the
interim receiver as envisaged by Item 2 of Article 64 of the present
Federal Law; file a petition with a court of arbitration for removal of
the head of the debtor; obtain any information and documents
concerning the debtor’s activity; exercise the other powers established
by the present Federal Law.
2. The debtor’s managerial bodies shall provide the interim receiver on
his/her request with all information concerning the debtor’s activity.
Information on the debtor and the property thereof, including without
limitation, property rights and on liabilities that has been requested by
the interim receiver from natural persons, legal entities, state bodies
and local self-government bodies shall be provided by said
persons/entities and bodies to the interim receiver within seven days
after the receipt of the qualified receiver’s request on a free-of-charge
Second, Mr. Udalischev claims that Russian law precludes creditors from
seeking discovery relating to a debtor’s affairs, including a debtor’s former
shareholders and managers and that creditors may not initiate a judicial action to
obtain this discovery. However, Mr. Udalischev never cites any language from the
Russian Code that supports that conclusion. This is simply another example of
where Mr. Udalischev makes a conclusory argument that Russian law prohibits
outside discovery, yet remains unsupported by any specific authority.
A final indicator that the Non-Parties’ arguments miss the mark is the fact
that several courts, in recent years, have allowed for discovery in section 1782 cases
to proceed for the use in Russian courts:
There is no indication, let alone any authoritative proof, that the
Russian court would reject as evidence any documents gathered with
the aid of the witnesses' deposition testimony, nor that it would reject
such testimony if offered in support of a request by Imanagement for a
Russian court order for the production of particular documents or other
evidence. The Court therefore cannot say that the Russian court's
statement constitutes authoritative proof that the Russian court would
reject evidence gathered with the assistance of discovery under § 1782,
or that the refusal to admit the deposition transcripts as testimonial
evidence signals a ‘lack of receptivity’ to ‘U.S. federal-court judicial
assistance’ such that the Court should use its discretion to deny
Imanagement’s request for discovery.
In re Imanagement Servs., Ltd., 2005 WL 1959702, at *4 (E.D.N.Y. Aug. 16, 2005)
(citing Intel Corp., at 264); see also In re: Application of Joint Stock Co.
Raiffeinsenbank, 2016 WL 6474224, at *5 (“The Court is unaware of any
authoritative source suggesting the Arbitrazh Courts would be unreceptive to the
discovery RFB seeks.”); In re Kolomoisky, 2006 WL 2404332, at *2 (S.D.N.Y. Aug.
18, 2006) (finding no evidence that the Russian government or the court where the
Moscow Action occurred opposes Petitioner’s discovery request).
When coupling the lack of support in Mr. Udalischev’s declaration with the
lack of authoritative evidence that Russian courts are not receptive to American
judicial assistance, we agree with MTS that “Russia may actually be receptive to
such discovery,” and that the second Intel factor weighs in favor of MTS. In re:
Application of Joint Stock Co. Raiffeinsenbank, 2016 WL 6474224, at *5; see also In
re Kreke Immobilien KG, 2013 WL 5966916, at *1 (“In the absence of authoritative
proof that a foreign tribunal would reject evidence obtained with the aid of section
1782, a district court should err on the side of permitting discovery.” (citations and
internal quotation marks omitted)).
To the extent there are any remaining doubts (and we believe there are none)
as to whether the Russian tribunal would consider the evidence sought, a suspicion
that the evidence gathered would ultimately be rejected is not enough to overcome
the presumption that district courts should allow for discovery to proceed under
section 1782 to promote the statute’s goals of efficiency and comity. See Euromepa,
51 F.3d at 1100; In re Kreke Immobilien KG, 2013 WL 5966916, at *5 (S.D.N.Y. Nov.
8, 2013) (“Rather than deny a § 1782 request because it suspects that the evidence
gathered would ultimately be rejected by the foreign tribunal, a U.S. district court
should presumptively allow discovery to the extent that such a grant would promote
the statute's goals of efficiency and comity.”) (citation omitted).
The Third Factor: Foreign Proof-Gathering Restrictions
The third Intel factor asks whether the § 1782 request “attempt[s] to
circumvent foreign proof-gathering limits or other policies of a foreign country or
the United States.”
Intel, 432 U.S. at 264-265.
“Although courts need not
determine if an applicant has exhausted its discovery attempts abroad, ‘a
perception that an applicant has ‘side-stepped’ less-than-favorable discovery rules
by resorting immediately to § 1782 can be a factor in a court’s analysis.”’ In re:
Application of Joint Stock Co. Raiffeinsenbank, 2016 WL 6474224, at *6 (quoting In
re Cathode Ray Tube (CRT) Antitrust Litig., 2013 WL 183944, at *3 (N.D. Cal. Jan.
17, 2013)). “Put differently, the § 1782 applicant’s conduct in the foreign forum is
not irrelevant.” In re Appl. of Gilead Pharmasset LLC, 2015 WL 1903957, at *4 (D.
Del. Apr. 14, 2015) (quoting In re IPC Do Nordeste, LTDA, 2012 WL 4448886, *9
(E.D. Mich. Sept. 25, 2012)). “This is not the same as a foreign discoverability
requirement; the fact that a § 1782 application requests documents that would not
be discoverable by the foreign court if those documents were located in the foreign
jurisdiction is not enough to render the application a ‘circumvention’ of foreign
rules. However, this factor suggests that a district court should be vigilant against
a petitioner’s attempt to ‘replace a [foreign] decision with one by [a U.S.] court.’” In
re Kreke Immobilien KG, 2013 WL 5966916, at *6 (S.D.N.Y. Nov. 8, 2013) (citations
Similar to the second Intel factor, the Non-Parties rely on the declaration of
Mr. Udalischev to argue that the discovery request from MTS is an improper
attempt to undermine Russian policies and procedures that restrict discovery in this
type of action. Yet, we agree with MTS that the Court has no reason to believe that
there are policies or laws in Russia or the United States that preclude the discovery
The Non-Parties only make conclusory arguments that the discovery
sought is barred by Russian law, but never point to any specific authority to support
those contentions. By contrast, MTS refers to several authorities that suggest that
U.S. courts have found Russian bankruptcies to fall within the scope of § 1782. See,
e.g., Lancaster Factoring Co. v. Mangone, 90 F.3d 38, 42 (2d Cir. 1996) (“A
bankruptcy proceeding, by its nature, is one in which the value of the debtor’s estate
is adjudicated. Such a proceeding is within the intended scope of § 1782.”).
More importantly, we are unaware of any restrictions imposed by Russian
courts in proof-gathering procedures that would prohibit MTS from obtaining and
introducing the discovery sought via section 1782. There also is no evidence to
suggest that MTS has received an adverse decision from a Russian tribunal
regarding prior discovery requests or is seeking relief under section 1782 as an
attempt to sidestep Russian policies and procedures. Accordingly, we find that the
third Intel factor favors MTS.
The Fourth Factor: Overbroad and Unduly Burdensome
The Non-Parties’ final argument in support of their Motion is that the
subpoenas are (1) overbroad and impose an undue burden on the Florida banks, and
(2) violate the due process and privacy rights of Sky Ocean. To be clear, a district
court may consider whether an application contains “unduly intrusive or
burdensome requests,” Intel Corp., 542 U.S. at 265, is “made in bad faith, for the
purpose of harassment,” Euromepa S.A., 51 F.3d at1101 n. 6, or is part of a “fishing
expedition,” In re Request for Assistance from Ministry of Legal Affairs of Trinidad
and Tobago, 848 F.2d 1151, 1156 (11th Cir. 1988), abrogated on a different ground
by Intel Corp., 542 U.S. at 259.
The Non-Parties suggest that the subpoenas seek documents that are not
probative of the claims currently pending and that the documents may be obtained
from other sources, including Transaero and its banking institutions. The NonParties further contend that the subpoenas improperly seek broad-based business
and personal financial documents over a seven-year period and are not properly
limited in time. Thus, the subpoenas, as they stand now, purportedly equate to
nothing less than a wide net designed to impose an undue burden on the Florida
Banks and Sky Ocean.
Furthermore, the Non-Parties argue that MTS seeks subpoenas for use in the
Russian bankruptcy and/or “contemplated proceedings” in other jurisdictions. Yet,
the discovery applied for and permitted in this case is supposedly overbroad and
seeks materials strictly personal, private, and confidential in nature.
words, the Non-Parties suggest that the documents sought have nothing to do with
Transaero – the party allegedly indebted to MTS – nor the Russian bankruptcy.
The Non-Parties also argue that there has been no showing as to how the requested
discovery will be used or otherwise assist MTS in the Russian bankruptcy, which is
the only pending proceeding at this time. Because the discovery sought attempts to
use sensitive and private information to engage in a fishing expedition for other
“contemplated proceedings”, the Non-Parties believe that the subpoenas should be
In response, MTS contends that, as a creditor in the Russian bankruptcy case
and as a future plaintiff in a contemplated action for fraud, the subpoenas seek
relevant information concerning the disposition of its funds and information on any
transfer of illegally gotten funds through Florida based accounts. As such, MTS
compares its document requests to similar ones that courts have found acceptable in
other foreign bankruptcy proceedings. See, e.g., In re Application of Setraco Nigeria
Ltd., 2013 WL 3153902, at *4 (M.D. Fla. June 19, 2013); In re Application of Hill,
2005 WL 1330769, at *5 (S.D.N.Y. June 3, 2005).
MTS also argues that the
discovery sought is limited to the time period beginning on November 12, 2010 – the
date of the initial loan by MTS to Transaero. MTS further explains that a debt is
still outstanding and that transfers may have occurred well after 2010. Therefore,
MTS believes that it is appropriate to seek records from November 12, 2010 to the
As for the Non-Parties arguments concerning whether the subpoenas are
unduly burdensome, MTS argues that abstract assertions of burden, privacy, or
intrusiveness do not suffice under Eleventh Circuit precedent. See, e.g., Application
of Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA),
Inc., 747 F.3d 1262, 1273 (11th Cir. 2014) (finding that the respondent “failed to
identify which particular discovery requests . . . are unduly burdensome or to
provide any specific evidence to support its blanket claim that [the respondent]
should be exempted from having to comply with any and all discovery obligations
due to overarching concerns about confidentiality that are stated only at the highest
order of abstraction.”). MTS contends that the Non-Parties have merely proffered
unsupported legal conclusions that the subpoenas are unduly burdensome without
substantiating that position with any evidence or sworn affidavits. Because the
Non-Parties’ position is allegedly untenable, MTS believes that all of their
arguments lack merit.
After full consideration of the arguments presented, we agree with MTS that
the Non-Parties have failed to present any persuasive reason as to why any of the
subpoenas should be quashed.
First, the Non-Parties’ contention that the
subpoenas should be restricted solely to proceedings currently pending – and not
contemplated actions – is incorrect as a matter of law. Many parties have made the
same argument in connection with section 1782 and courts have uniformly rejected
them. “Section 1782 is designed to support such contemplated claims, including
civil and criminal proceedings to be initiated by a private party in a foreign
tribunal, even when said proceedings are contemplated but have not yet
commenced.” In re Application of Setraco Nigeria Ltd., 2013 WL 3153902, at *2
(citing Intel, 542 U.S. at 243 (establishing that, for purposes of section 1782, “it is
not necessary . . . for the [adjudicative] proceeding to be pending at the time the
evidence is sought, but only that the evidence is eventually to be used in such a
proceeding”); In re Application of Mesa Power Group, LLC, 878 F.Supp.2d 1296,
1303 (S.D. Fla. 2012) (“Section 1782 may authorize and encourage judicial
assistance even if the foreign proceeding has not commenced or advanced because §
1782 is not limited to proceedings that are pending . . . In fact, the proceedings need
‘only . . . be within reasonable contemplation.’”); In re Application of Inversiones y
Gasolinera Petroleos Valenzuela, S.De R.L., 2011 WL 181311, at *10 (holding the
fact that investigation into crimes “has not yet resulted in formal criminal
proceedings does not mean that such proceedings are not still within ‘reasonable
contemplation’”) (internal citation omitted); In re Application of Wining (HK)
Shipping Co. Ltd., 2010 WL 1796579 at *10 (S.D. Fla. 2010) (denying motion to
quash order granting 1782 application in support of unfiled, anticipated,
Second, the time period suggested by MTS is appropriate because the basis
for the materials sought is to discover whether transfers to U.S. based accounts and
businesses occurred up to the present. As such, the subpoenas are not overbroad in
temporal scope because they seek to capture all of the information relevant in a
contemplated action for fraud. If the subpoenas were limited as the Non-Parties
suggested, it would fundamentally weaken the purpose of the subpoenas in
discovering relevant information on a suspected fraud.
Third, we agree with MTS that the Non-Parties have not demonstrated how
the subpoenas are unduly burdensome or intrusive other than abstract assertions of
privacy and confidentiality. The Non-Parties did not support their argument with
any specific evidence to support their legal conclusions nor did they present any
facts to bolster their position. See Coker v. Duke & Co., Inc., 177 F.R.D. 682, 686
(M.D. Ala. 1998) (a party objecting on burdensomeness grounds must “substantiate
that position with detailed affidavits or other evidence . . . and cannot rely on simple
“An objection must show specifically how a [discovery
request] is overly broad, burdensome or oppressive, by submitting evidence or
offering evidence which reveals the nature of the burden.” Chubb Integrated
Systems Limited, v. National Bank of Washington, 103 F.R.D. 52, 59–60 (D.D.C.
1984); see also EEOC v. Quad/Graphics, Inc., 63 F.3d 642 (7th Cir. 1995).
In other words, the Non-Parties should have made a particular and specific
demonstration of fact rather than relying on simple conclusory assertions because
“[p]arties ‘cannot invoke the defense of oppressiveness or unfair burden without
detailing the nature and extent thereof.” Porter v. Nationscredit Consumer Disc.
Co., 2004 WL 1753255, at *1 (E.D. Pa. July 8, 2004) (quoting Martin v. Easton Pub.
Co., 85 F.R.D. 312, 316 (E.D. Pa. 1980)); see also Ericson v. Ford Motor Co., 107
F.R.D. 92 (E.D. Ark. 1985) (finding that a mere showing of burden and expense is
not enough). Therefore, we find that the final Intel factor weighs in favor of MTS
and that the Non-Parties’ Motion to quash the subpoenas, with respect to Sky
Ocean and the Florida Banks, must be DENIED.5
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that
the Non-Parties’ Motion to Quash Subpoenas is GRANTED in part and DENIED
in part. [D.E. 14]. With respect to the subpoenas issued to Sky Ocean and the
Florida Banks, any responsive documents should be produced within fourteen (14)
days from the date of this Order.
To this extent, the Non-Parties’ Motion is
As for the subpoenas directed to Mr. Pleshakov, we hold that MTS has not
proffered sufficient facts to find that Mr. Pleshakov “resides” or can be “found”
within the district to satisfy the statutory requirements under section 1782. As
such, the Non-Parties’ Motion, as it relates to Mr. Pleshakov, is GRANTED. MTS
is permitted to take limited jurisdictional discovery to ascertain whether it can meet
all of the statutory requirements of section 1782.
To extent there are any remaining concerns about sensitive business
information being produced outside the contours of this case, the parties shall work
cooperatively to submit a stipulated protective order to the Court.
DONE AND ORDERED in Chambers at Miami, Florida, this 1st day of
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge
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