ORDER denying as moot 9 Motion to Quash; denying 10 Motion to Quash; denying 11 Motion to Quash; deferring ruling on 18 Motion to Compel. The parties are ORDERED, within 30 days of service of this Order, to update the Court as to whether a resolution has been reached and claimant's motion is withdrawn. Signed by Magistrate Judge G. R. Smith on 8/29/17. (loh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
In Re: Application of Pola Maritime,
Ltd., for an Order Pursuant to
28 U.S.C. § 1782 to Conduct Discovery
for Use in Foreign Proceedings
Claimant Pola Maritime, Ltd. (“Pola”) has lodged a claim against
(“Agribusiness Savannah”), and Agribusiness United DMCC (Dubai),
LLC (“Agribusiness Dubai”) before the London Maritime Arbitrators
Association (LMAA). See doc. 1. Pola came to this Court seeking (and
received) subpoenas to serve in this district, including Fed. R. Civ. P.
45(d)(3) subpoenas upon Agribusiness Dubai, Agribusiness United
Agribusiness United North American Corporation (“Agribusiness North
See doc. 2. Objectors Agribusinesses Commodities and
North American have moved to quash the subpoenas (docs. 10, 11 &
21) 1 and Pola has cross-moved to compel them (doc. 18).
Pola agreed to withdraw the subpoena served on Agribusiness Dubai, doc. 13 at 1,
so Agribusiness Dubai’s motion to quash (doc. 9) is DENIED as moot.
Pola chartered the M/V N Schelde to transport agricultural cargo
from Argentina to Atlantic Morocco, in a charter agreement with
Agribusiness Savannah with a choice of law provision (English law) and
choice of forum for any dispute (arbitration in accordance with the rules
of the LMAA). A dispute arose, and Pola initiated arbitral proceedings
against Agribusinesses Savannah and Dubai.
Pola contends that Agribusiness Dubai is actually the principal to
the charter agreement -- not Agribusiness Savannah, which signed as
Dubai’s agent.3 In the arbitral proceeding, Pola seeks: 1) indemnity
from either or both Agribusinesses Savannah and Dubai for pending
The background is synthesized from the various pleadings, including the original
application (doc. 1) and the parties’ various cross motions (docs. 9, 10, 11, 18 & 21).
These facts, at least, are not in dispute.
The parties executed three fixtures, the first with Agribusiness Savannah as the
Charterer. Doc. 1-2 (Declaration of Edward Gray) at ¶ 9. However, when Pola issued
its freight invoice to Agribusiness Savannah, it was asked to reissue it to
Agribusiness Dubai. Ultimately, Agribusiness Dubai (not the signatory to the
Charter) satisfied the first two freight invoices, not Agribusiness Savannah. Id. at
¶¶ 9-11. Documents produced by Wells Fargo and Bank of America have further
underscored “a web of fund commingling and sharing of information about the
various commercial transactions of the Agribusiness entities.” Doc. 18 at 3-4.
Objectors Agribusinesses North America and Commodities have not seriously
disputed this characterization, emphasizing instead that because they are not parties
to the arbitration and no claims have yet been lodged against them in the arbitration,
discovery of their relationship with the named respondents is fundamentally
improper. See docs. 10, 11 & 21.
demurrage (a charge for failure to load or discharge the ship within the
time agreed) damages.
The documents currently sought would
allegedly illuminate the relationships among the various Agribusiness
entities, for use in the proceeding before the LMAA.4
Objectors dispute that the subpoenas were properly issued
pursuant to 28 U.S.C § 1782. Docs. 10 & 11; see also doc. 18, Exh. 1
(Agribusiness North America’s objection and response to subpoena) &
Exh. 2 (Agribusiness Commodities’ objection and response to subpoena).
Under § 1782(a), “[t]he district court 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
For example, Pola seeks from Agribusinesses North America and Commodities a
qualified individual to testify regarding contracts between the various Agribusiness
entities for the past three years; an explanation of business dealings between the
various Agribusiness entities and “cargoes carried on board” the Vessels M/V N
Schelde, M/V Pola Palekh, and M/V Pola Indian since January 1, 2015; and an
explanation of the relationship between the various Agribusiness entities and
Agroglobal S.A. from January 1, 2015 to the present. Doc. 1-1 at 39 & 47. Pola
further seeks the production of documents, including “bank slips, wire details,
payment information, or instructions” from the various Agribusiness entities related
to cargo contracts with those three vessels; “contracts and/or communications
between any Agribusiness entity and Agroglobal S.A. from January 1, 2015 to the
present day”; and “documents relating to contracts or agreements” amongst the
various Agribusiness entities. Id. at 42-43 & 50-51.
international tribunal . . . . The order may be made . . . 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.” A district court is authorized to
grant an application if the following statutory requirements 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.
In re Clerici, 481 F.3d 1324, 1331-32 (11th Cir. 2007) (citing 28 U.S.C.
§ 1782(a)); see also In re Application of Microsoft Corp., 428 F. Supp. 2d
188, 192 (S.D.N.Y. 2006). Here, as claimant in the arbitration, Pola is
certainly an “interested person,” seeking evidence found in this district,
and that evidence sought is certainly within the meaning of § 1782. So,
the question is whether the LMAA is a “foreign tribunal” for the
purpose of § 1782.
As to what comprises a “foreign tribunal,” the Supreme Court has
when Congress established the Commission on International
Rules of Judicial Procedure in 1958, it instructed the Rules
Commission to recommend procedural revisions “for the rendering
of assistance to foreign courts and quasi-judicial agencies.”
Section 1782 had previously referred to “any judicial proceeding.”
The Rules Commission’s draft, which Congress adopted, replaced
that term with “a proceeding in a foreign or international
tribunal.” Congress understood that change to “provid[e] the
possibility of U.S. judicial assistance in connection with
[administrative and quasi-judicial proceedings abroad].” S. Rep.
No. 1580, at 7-8, U.S. Code Cong. & Admin. News 1964, pp. 3782,
3788; see Smit, International Litigation 1026-1027, and nn. 71, 73
(“[t]he term ‘tribunal’ . . . includes investigating magistrates,
administrative and arbitral tribunals, and quasi-judicial agencies,
as well as conventional civil, commercial, criminal, and
administrative courts”; in addition to affording assistance in cases
before the European Court of Justice, § 1782, as revised in 1964,
“permits the rendition of proper aid in proceedings before the
[European] Commission in which the Commission exercises quasijudicial powers”).
Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 247 (2004).
Thus courts, as well as “quasi-judicial agencies” and “arbitral
tribunals,” comprise the types of bodies that § 1782 means to address.
Pola contends that the LMAA is one such tribunal; Agribusinesses
North American and Commodities disagree. Docs. 10 at 7 & 11 at 7
(arguing Pola is restricted to the discovery and disclosure procedures
authorized by the LMAA and can’t come fishing around the Southern
District of Georgia with any federal subpoenas).
The Intel court, in setting forth a functional description of a
“foreign tribunal” under § 1782, focused on the judicial reviewability of
the decisions of the European Commission in determining that the body
was a foreign or international tribunal under § 1782. 542 U.S. at 258
(the Commission’s role “as a first-instance decisionmaker,” subject to
judicial review, did not “exclude” it “from § 1782(a)’s ambit”).
awards by the LMAA are reviewable by the English Courts pursuant to
the English Arbitration Act of 1996.5 Hence, while the LMAA “is much
like a purely private arbitration,” its reviewability by a true judicial
body brings it within the § 1782 definition of a “foreign tribunal.” Ex rel
Per the LMAA website:
How can an award be challenged or appealed against?
There may be a challenge to an award if a serious irregularity, as defined in
s.68(2) of the Arbitration Act 1996 can be shown. Such challenges are rarely
made, however, because of the difficulty of proving the relevant grounds, and
few of those that are made are successful. The advice of experienced lawyers is
essential before mounting a challenge, and in order to pursue one lawyers
must be involved.
An appeal on a question of law arising out of an award may be made under
s.69 of the Arbitration Act 1996. However, unless the parties agree, leave to
appeal has first to be obtained. That is not easily done having regard to s.69(3)
of the Act, and in particular to sub-section (c) thereof. Even in those relatively
rare cases where leave is granted, a substantial proportion of awards are
upheld. As with s.68 challenges, the advice of experienced lawyers is essential
before seeking leave to appeal, and in order to pursue an application lawyers
must be involved.
“Appeals, Challenges and Precedents,” available at http://www.lmaa.london/faq.aspx
?pkFaqCatID=9e23fba1-55e9-4309-ade5-31aa2debd82e (last accessed August 25,
Application of Winning (HK) Shipping Co. Ltd., 2010 A.M.C. 1761,
1773-74 (C.D. Cal. 2010); see also In re Ex Parte Application of Kleimar
N.V., 220 F. Supp. 3d 517 (S.D.N.Y. 2016) (the LMAA is a foreign
tribunal within the meaning of § 1782); In re Owl Shipping, LLC, 2014
WL 5320192 at * 2 (D.N.J. Oct. 17, 2014) (same).
The Intel Factors
Even if the prima facie requirements are satisfied, the Intel court
set forth additional, discretionary factors to be considered before
authorizing discovery under § 1782:
(1) whether the person from whom discovery is sought is a
participant in the foreign proceeding, because the need for
§ 1782(a) aid 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 underway
abroad, and the receptivity of the foreign government or the court
or agency abroad to U.S. federal-court judicial assistance;
(3) whether the § 1782(a) request conceals an attempt to
circumvent foreign proof-gathering restriction or other policies of a
foreign county or the United States; and (4) whether the request is
otherwise unduly intrusive or burdensome.
Application of Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS
Forwarding (USA), Inc., 747 F.3d 1262, 1271-72 (11th Cir. 2014); see
also In re: Clerici, 481 F.3d at 1331.
Here, as to the first factor, there is no dispute that neither
Agribusinesses North America nor Commodities are participants in the
LMAA proceeding. As to the second, however, “the tribunal at issue is a
first-instance decision maker that renders decisions which are
reviewable in an English court” and objectors have offered “no evidence
or case law [ ] that indicates that the foreign government or court would
be unreceptive to United States federal-court judicial assistance.”
Application of Winning (HK), 2010 A.M.C. at 1777; see docs. 10 at 10 &
11 at 10.
And neither objector has convincingly argued that Pola’s subpoena
requests “conceal an attempt to circumvent foreign proof-gathering
restrictions or other policies of a foreign country or the United States.”
Application of Winning (HK), 2010 A.M.C. at 1777; see also Intel, 542
U.S. at 259-65.
Indeed, they merely conclusorily contend that “this
discovery . . . has been served in contravention of the terms of the
arbitration,” which has its own discovery and disclosure procedure.
Doc. 10 at 10 & doc. 11 at 10. And the case law demonstrates that the
English courts have explicitly sanctioned § 1782(a) as an appropriate
vehicle for propounding discovery. See, e.g., South Carolina Ins. Co. v.
Assurantie Maatschappij “De Zeven Provincient” NV, 1 App. Cas. 24
(1986), cited in Intel, 542 U.S. at 261-62 (noting the “House of Lords
ruled that non-discoverability under English law did not stand in the
way of a litigant in English proceedings seeking assistance in the
United States under § 1782.”).
As to the fourth factor, objectors’ contention that the subpoenas
are unduly burdensome and intrusive on their face because they “seek
documents unrelated to any pending claim or defense” and “outside the
scope of permissible discovery” (docs. 10 at 10-11 & 11 at 10-11; see also
doc. 18, Exhs. 1 ¶ 2) is not convincing in the face of the evidence already
in hand. Pola has shown that the Agribusiness entities often behave
interchangeably, transferring funds among themselves and referring
internally to one another -- both formally and informally, and
inconsistently -- as “Agribusiness United,” such that it can be difficult to
tell which entity is operating at any given time. Doc. 13-1 (Declaration
of Thomas Tisdale) at ¶¶ 7-17; see also supra fn. 3.
sought is clearly targeted to fleshing those relationships out, see supra
fn. 4, and is keyed to Pola’s contention that Agribusiness Dubai is the
principal to their charter agreement, with Agribusiness Savannah
merely its agent.
The type of materials sought is relevant (largely
limited to sussing out the corporate structure and interplay of the
various Agribusinesses) and is limited to a relevant time frame (the
past three years). The § 1782(a) discretionary factors militate toward
Once the § 1782 factors are met, it is “the federal discovery rules,
Fed. R. Civ. P. 26-36,” which “contain the relevant practices and
procedures for the taking of testimony and the production of
documents.” Weber v. Finker, 554 F.3d 1379, 1384-85 (11th Cir. 2009),
quoted in Application of Consorcio Ecuatoriano, 747 F.3d at 1272.
Objectors’ conclusory contention that the subpoenas are “grossly
overbroad” and thus must be quashed is simply not enough for this
Court to determine the problem with production. See docs. 10 at 10 &
11 at 10. Indeed, they rest their entire objection on a single sentence
describing the “problem” they have as being the “sheer size and
vagueness of the requests.” See docs. 10 at 12 & 11 at 12. But they
offer no meaningful objections to the number, time period, or scope of
documents to be produced and testimony sought. See id. They further
contend that answering the subpoenas will require them to “disclose
confidential pricing information,” but offer no clue as to what privileged
materials might be disclosed or why a protective order couldn’t be
drafted to keep those materials confidential. See docs. 10 at 12-13 & 11
at 12-13. And that is just not enough. See, e.g., Conway v. H&R Block
Eastern Enterp., Inc., 2017 WL 2120074 at *1 & 3 (S.D. Ga. May 15,
Though the Court recognizes that requests for “any and all”
documents are clearly overbroad, see, e.g., Fed. R. Civ. P. 34(b)(1)(A)
(requiring “reasonable particularity” in requests), objectors have offered
no argument as to how the subpoenas are unanswerable -- the scope of
each request can be narrowed through a meaningful conference between
counsel and any fears that confidential commercial information could be
released to the public allayed by a well written protective order.
That said, it is clear from their papers that the parties have not
met and conferred -- much less meaningfully so -- to narrow the scope of
their dispute before seeking court intervention. 6 They must do so, and
Requiring meaningful consultation can lead to informal resolution and thus
conservation of court resources. Avera v. United Airlines, Inc., 465 F. App’x 855, 85859 (11th Cir. 2012) (magistrate judge did not abuse his discretion in denying, without
prejudice, plaintiff’s motion to compel discovery where plaintiff had not sought to
resolve his discovery dispute with defendant before filing the motion); Jo Ann
Howard & Associates, P.C. v. Cassity, 2012 WL 1247271, at *8 (E.D. Mo. Apr. 13,
2012) (rejecting compulsion request in part because “the failure of the parties to
return to this Court only with narrowed, specific, and supported
objections to claimant’s subpoenas.
C.f. S.D. Ga. Loc. R. 26.5(c);
Scruggs v. Int’l Paper Co., 2012 WL 1899405 at *2 (S.D. Ga. May 24,
2012) (“the lawyers here are professionals” and thus capable of fulfilling
their duty to fully meet and confer before seeking the Court’s
intercession). Put another way, they shall in good faith (at least by
phone if not in person) attempt to resolve movant’s objections without
further Court involvement. Fees may be assessed for any bad faith
communicate materially impeded their resolution of this matter.”) (emphasis added).
The parties are reminded that
The scope of discovery under Fed. R. Civ. P. 26(b)(1) is broad and includes
discovery regarding any matter, not privileged, which is relevant to the claims
or defense of any party involved in the pending action. Those resisting
discovery must show specifically how the objected-to request is unreasonable
or otherwise unduly burdensome.
Claims and defenses determine discovery’s scope. Evidence is relevant if it has
any tendency to make the existence of any fact or consequence more or less
probable than it would be without the evidence.
Daniel Def., Inc. v. Remington Arms Co., LLC, 2015 WL 6142883 at * 2 (S.D. Ga. Oct.
19, 2015) (cites and quotes omitted).
“The standard for what constitutes relevant evidence is a low one.” United States
v. Tinoco, 304 F.3d 1088, 1120 (11th Cir. 2002); McCleod v. Nat’l R.R. Passenger
Corp., 2014 WL 1616414 at * 3 (S.D. Ga. Apr. 22, 2014) (“Rule 26, quite simply, sets
forth a very low threshold for relevancy, and thus, the court is inclined to err in favor
of discovery rather than against it.”). The recent changes to the Federal Rules of
Civil Procedure (in particular, Rule 26), although substantive and substantial, do not
change the definition of relevance. Instead, they reemphasize and highlight
In sum, objectors Agribusinesses North America and Commodities’
motions to quash the subpoenas (docs. 10 & 11) are DENIED without
prejudice, Agribusiness Dubai’s motion to quash the subpoena (doc. 9) is
DENIED as moot, claimant Pola’s motion to compel compliance with the
subpoena (doc. 18) is DEFERRED in abeyance of the parties’ successful
meet and confer discussions and compromises, and the parties are
ORDERED within 30 days of service of this Order to update the Court
as to whether a resolution has been reached and claimant’s motion is
SO ORDERED, this 29th
day of August, 2017.
requirements already present in the Rules, like proportionality. See Fed. R. Civ. P.
26, advisory committee note (2015) (“Restoring the proportionality calculation to
Rule 26(b)(1) does not change the existing responsibilities of the court and the parties
to consider proportionality. . . .”); Sibley v. Choice Hotels Int’l, 2015 WL 9413101 at
* 2 (E.D.N.Y. Dec. 22, 2015) (“While proportionality factors have now been
incorporated into the Rule 26(b)(1) definition, those factors were already a part of
Federal discovery standards, appearing in Rule 26(b)(2)(C)(iii)”).
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