In Re: Application of Sasha Digiulian and John Charles Digiulian for an Order under 28 U.S. C. Sec. 1782 to take Discovery from the Johns Hopkins Heath System Corporation
MEMORANDUM OPINION granting 1 Application of Sasha Digiulian and John Charles Digiulian for an Order under 28 U.S. C. Sec. 1782 to take Discovery from the Johns Hopkins Health System Corporation. Signed by Judge Paula Xinis on 10/8/2019. (jf3s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
IN RE: APPLICATION OF
SASHA DIGIULIAN, et al.
TO TAKE DISCOVERY FROM
THE JOHNS HOPKINS HEALTH
Civil Action No. 8:19-cv-02213-PX
Pending before the Court is Sasha and John Charles DiGiulian’s petition for issuance of a
subpoena for documents and testimony for use in a foreign proceeding. ECF No. 1. Petitioners
are challenging two wills of their deceased grandmother, Rita Ernesto DiGiulian (“Ms.
DiGiulian”), in the Quebec Superior Court in Canada on grounds of lack of capacity and undue
influence. Id. at 2. At the time the disputed wills were endorsed, Ms. DiGiulian was a patient at
Respondent The Johns Hopkins Health System Corporation (“Johns Hopkins”). ECF No. 1-1 at
2. Petitioners seek evidence related to Ms. DiGiulian’s mental health and competency at the
time she purportedly endorsed the wills, information that is directly relevant to their allegations
of incapacity. Id. at 2–4.
Specifically, Petitioners wish to subpoena from Johns Hopkins all medical records and
documents related to Ms. DiGiulian from January 1, 2007 to January 27, 2017. Id. at 3–4.
Petitioners further ask the Court for the authority to subpoena any “treating health providers
revealed by such records” for depositions. Id. at 3.
On September 6, 2019, the Court issued a paperless order directing Petitioners to submit
their proposed subpoena for the Court’s review. ECF No. 2. Petitioners filed their proposed
subpoena on September 10, 2019. ECF No. 3.
The Court’s authority to determine whether the subpoena shall issue arises from 28
U.S.C. § 1782(a), which provides “federal-court assistance in gathering evidence for use in
foreign tribunals.” Intel Corp. v. Advanced Micro Devices, 542 U.S. 241, 247 (2004). A federal
court may grant such assistance where (1) the person from whom the discovery is sought resides
or is found in the district of the district court to which application is made, (2) the discovery is
for use in a proceeding before a foreign tribunal, and (3) the application is made by a foreign or
international tribunal or “any interested person.” 28 U.S.C. § 1782(a).
Based on Petitioners’ proffered evidence, the Court finds that Petitioners have met each
of these requirements. The discovery is sought from a non-profit corporation found in
Baltimore, Maryland; the evidence is expected to be used in proceedings before a Canadian
court; and the application is made by an “interested person,” namely parties to the litigation. See
Intel, 542 U.S. at 256 (“No doubt litigants are included among, and may be the most common
example of, the ‘interested person[s]’ who may invoke § 1782.”).
Petitioners have also persuaded this Court that the subpoena is warranted under the
additional discretionary factors identified by the United States Supreme Court in Intel Corp. v.
Advanced Micro Devices, 542 U.S. at 264–65. These factors guide the Court in assessing
Section 1782’s “twin aims of providing efficient means of assistance to participants in
international litigation in our federal courts and encouraging foreign countries by example to
provide similar means of assistance to our courts.” Al Fayed v. United States, 210 F.3d 421, 424
(4th Cir. 2000) (citation omitted). The factors are: (1) whether “the person from whom
discovery is sought is a participant in the foreign proceeding;” (2) the receptivity of the foreign
tribunal to U.S. court assistance; (3) whether the request is an attempt to “circumvent foreign
proof-gathering restrictions;” and (4) whether the documents sought are “unduly intrusive or
burdensome.” Intel, 542 U.S. at 264–65.
Based on Petitioners’ submission, the discretionary factors on the whole favor issuing the
requested subpoena. First, Johns Hopkins is not a party to the Canadian action and thus not
subject to the jurisdiction of the Quebec Superior Court, rendering the Court’s assistance
essential. Second, nothing in the record before the Court suggests that the Quebec Superior
Court would be unreceptive to the issuance of the subpoena, so this factor is neutral in the
analysis. Third, the Court is not aware of any restrictions placed on discovery by the Quebec
Superior Court which this subpoena would circumvent. Fourth, Petitioners’ proposed subpoena
appears to be tailored to the issues before the foreign tribunal and, based on Petitioners’
representations, the requested materials are within the possession, custody and control of Johns
Hopkins. Finally, the Court notes that once the subpoena is served on Johns Hopkins and any
health providers, each may file a motion to quash the subpoena in lieu of compliance, which will
automatically reopen this matter. In Re Naranjo, 768 F.3d 332, 338 n.4 (4th Cir. 2014).
Accordingly, and upon consideration of Sasha and John Charles DiGiulian’s application,
it is this 1st day of October 2019, by the United States District Court for the District of Maryland,
1. The Petition filed by Sasha and John Charles DiGiulian (ECF No. 1) BE and the
same hereby IS, GRANTED;
2. Petitioners are authorized, pursuant to 28 U.S.C. § 1782, to serve on The Johns
Hopkins Health System Corporation a subpoena;
3. Petitioners shall have 14 days to request the issuance of a subpoena; and
4. The Clerk shall TRANSMIT copies of this Order to the parties.
United States District Judge
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