Application of Alberto Safra for an Order to take Discovery for use in foreign proceedings pursuant to 28 U.S.C. 1782

Filing 63

OPINION AND ORDER re: 59 LETTER MOTION for Leave to File Sur-Reply addressed to Magistrate Judge James L. Cott from Matthew J. Porpora dated May 24, 2022. filed by Vicky Safra, 1 MISCELLANEOUS CASE INITIATING DOCUMENT - MOTI ON for Discovery. (Filing Fee $ 49.00, Receipt Number 465401283891) filed by In Re: Application of Alberto Safra for an Order to take Discovery for use in foreign proceedings pursuant to 28 U.S.C. 1782. For the foregoing reasons, Alberto&# 039;s Application pursuant to section 1782 is granted. Alberto is hereby authorized to serve the subpoenas annexed as Exhibit 2 to the declaration of Lucas Bento upon Respondents Drs. Tabar, Diamond, Fuster, Bressman, Mount Sinai Health System, an d Memorial Sloan Kettering Cancer. All discovery produced by Respondents is subject to the entry of an appropriate protective order, given the sensitive nature of the discovery that is the subject of the subpoenas. The Clerk is respectfully directed to close Docket No. 1 and mark it as "granted," and to close the letter-motion at Docket No. 59 and mark it as "denied." SO ORDERED. (Signed by Magistrate Judge James L. Cott on 8/22/2022) (rro)

Case 1:21-mc-00640-GHW-JLC Document 63 Filed 08/22/22 Page 1 of 18

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
IN RE APPLICATION OF ALBERTO
:
SAFRA FOR AN ORDER TO TAKE
:
DISCOVERY FOR USE IN FOREIGN
:
PROCEEDINGS PURSUANT TO
:
28 U.S.C. § 1782
:
---------------------------------------------------------------X

8/22/2022

OPINION AND ORDER
21-MC-640 (GHW) (JLC)

JAMES L. COTT, United States Magistrate Judge.
Alberto Safra (“Alberto”) has applied for an order to obtain discovery for use
in a foreign proceeding pursuant to 28 U.S.C. § 1782 (“Section 1782”). Alberto
requests leave to serve subpoenas on Dr. Susan Bressman, Dr. Eli L. Diamond, Dr.
Valentin Fuster, Dr. Viviane Tabar, Mount Sinai Health System (“Mount Sinai”),
and Memorial Sloan Kettering Cancer Center (“MSKCC” and together with Drs.
Bressman, Diamond, Fuster, and Tabar, and Mount Sinai, the “Respondents”).
Alberto seeks medical records and deposition testimony to be used in Swiss
testamentary proceedings contesting two wills executed by the late Joseph Yacoub
Safra (“Joseph”), Alberto’s father. Respondents have not opposed the request, but
Alberto’s mother and Joseph’s wife, Vicky Safra (“Vicky”), opposes his application.
For the reasons set forth below, Alberto’s application is granted. 1

Given the multiple members of the Safra Family who are identified in this
Opinion, the Court will use their first names to distinguish them for ease of
reference.
1

1

Case 1:21-mc-00640-GHW-JLC Document 63 Filed 08/22/22 Page 2 of 18

I.
A.

BACKGROUND

Procedural History

On August 5, 2021, Alberto filed an ex parte application in this Court, seeking
an order pursuant to Section 1782 to conduct discovery for use in the testamentary
proceedings he is pursuing in Switzerland. See Application of Alberto Safra for an
Order to Take Discovery for Use in Foreign Proceedings Pursuant to 28 U.S.C. §
1782 (“Application”), Dkt. No. 1; Memorandum of Law (“Pet. Mem.”), Dkt. No. 2.
Along with his memorandum of law, Alberto filed the following declarations: the
Declaration of Alberto Safra (“Safra Decl.”), dated August 5, 2021, with Exhibits 1–
8, Dkt. No. 5; the Declaration of David Wallace Wilson (“Wilson Decl.”), dated
August 5, 2021, with Exhibits 1–6, Dkt. No. 6; and the Declaration of Lucas Bento
(“Bento Decl.”), dated August 5, 2021, with Exhibits 1–14.
On August 31, 2021, Vicky moved to intervene, as executor and administrator
of Joseph’s estate. Motion to Intervene, Dkt. No. 18; Memorandum of Law in
Support of Vicky Safra’s Motion to Intervene, Dkt. No. 19. Alberto responded on
September 3, 2021, consenting to Vicky’s intervention. Petitioner’s Response to
Vicky Safra’s Motion to Intervene, Dkt. No. 22. On September 6, 2021, Judge
Woods granted Vicky’s motion to intervene. Dkt. No. 23.
After several extensions, Respondents filed their response on April 25, 2022.
Response to Motion for Discovery (“Resp. Brief”), Dkt. No. 50. Also on April 25,
2022, Vicky filed papers opposing Alberto’s Application. Memorandum of Law in
Opposition (“Opp.”), Dkt. No. 51. Along with her opposition papers, Vicky filed the
Declaration of Prof. Dr. Denis Piotet (“Piotet Decl.”), dated September 24, 2021.
2

Case 1:21-mc-00640-GHW-JLC Document 63 Filed 08/22/22 Page 3 of 18

Dkt. No. 52. Alberto filed reply papers on May 9, 2022. Reply Memorandum of Law
(“Pet. Reply”), Dkt. No. 54. With his reply papers, Alberto filed three declarations:
the Declaration of David Wallace Wilson (“Second Wilson Decl.”), dated May 9,
2022, Dkt. No. 55; the Declaration of Professor Nicolas Jeandin (“Jeandin Decl.”),
dated May 9, 2022, Dkt. No. 56; and the Declaration of Dr. Sheila Wendler
(“Wendler Decl.”), dated May 9, 2022, Dkt. No. 57. On May 24, 2022, Vicky moved
for leave to file a sur-reply (“Sur-reply”), attaching her proposed sur-reply. Dkt. No.
59. With that motion, she also filed the Declaration of Matthew J. Porpora
(“Porpora Decl.”), dated May 24, 2022. Dkt. No. 60. On May 25, 2022, Alberto filed
a letter opposing Vicky’s motion for leave to file a sur-reply. Dkt. No. 62. 2
By Order dated November 23, 2021, Judge Woods referred the Application to
me for resolution. See Dkt. No. 37. I have authority to decide Alberto’s request for
discovery under Section 1782 as it is a non-dispositive matter. See, e.g., In re Hulley

Sur-replies are not permitted without court authorization. See, e.g., Kapiti v.
Kelly, No. 07-CV-3782 (RMB) (KNF), 2008 WL 754686, at *1, n.1
(S.D.N.Y. Mar. 12, 2008) (“Allowing parties to submit sur-replies is not a regular
practice that courts follow, because such a procedure has the potential for placing a
court in the position of refereeing an endless volley of briefs.”) (citation and
quotation marks omitted). Vicky argues that she should be afforded the
opportunity to respond to Alberto’s reply, and to certain statements in the Jeandin
Declaration, as she contends that they are “new arguments.” Sur-reply at 1.
However, Alberto’s reply and the accompanying Jeandin Declaration merely
respond to the arguments advanced in Vicky’s opposition memorandum. The only
new argument, an allegation that Alberto will use the discovery he seeks from
Respondents in a private arbitration taking place in the United Kingdom, was
raised not by Alberto in his reply, but by Vicky, in her sur-reply. Thus, the motion
to file a sur-reply is denied. Even if the Court were to consider the sur-reply, it does
not present new information that would change the decision to grant Alberto’s
Application.
2

3

Case 1:21-mc-00640-GHW-JLC Document 63 Filed 08/22/22 Page 4 of 18

Enters., Ltd., 358 F. Supp. 3d 331, 341–42 (S.D.N.Y. 2019) (application brought
under Section 1782 is “non-dispositive” matter within meaning of Fed. R. Civ. P.
72(b)).
B.

Factual Background

Alberto seeks discovery from Respondents to use in testamentary proceedings
in Switzerland contesting two wills his late father executed in November and
December 2019, which excluded Alberto from inheritance. Pet. Mem. at 1–2.
Alberto seeks to invalidate those two wills by presenting medical evidence that his
father’s “health and neurological ailments in late 2019 deprived him of the
testamentary capacity to execute the [wills] and/or left him vulnerable to undue
influence.” Id. at 3. On May 3, 2022, Alberto initiated litigation in Switzerland
against the heirs to Joseph’s estate. Second Wilson Decl. ¶5.
Respondents have taken no position regarding Alberto’s request; they only
seek to “minimize the burden and expense” of discovery. Resp. Brief at 2. Their
counsel have met with Alberto’s counsel to come to an agreement on the scope of
documents requested; however, at the time of the filing of Alberto’s Application,
they had yet to agree on the number, duration, and scope of the requested
depositions. Id.
Vicky makes two arguments in opposing Alberto’s request. First, she argues
that the Court should deny the request to depose Respondents because any
deposition testimony taken in the United States will be inadmissible as witness
evidence in the Swiss proceeding and will be separately attainable directly through
the Swiss proceeding. Opp. at 8–9. Second, she argues that the Court should
4

Case 1:21-mc-00640-GHW-JLC Document 63 Filed 08/22/22 Page 5 of 18

narrow Alberto’s document request to cover only documents relating to Joseph’s
mental condition in 2019, and not any other medical records for the years 2018
through 2020, as Alberto has requested. Id. at 11–12.
II.

DISCUSSION

A. Legal Standards
Under 28 U.S.C. § 1782,
[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 international tribunal . . . [t]he 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.
28 U.S.C. § 1782(a). Accordingly, a district court has jurisdiction to grant an
application under Section 1782 if the following statutory requirements are met: “(1)
the person from whom discovery is sought resides or is found within the district; (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.”
Kiobel by Samkalden v. Cravath, Swaine & Moore, LLP, 895 F.3d 238, 243 (2d Cir.
2018) (cleaned up); see also In re Application of Microsoft Corp., 428 F. Supp. 2d
188, 192 (S.D.N.Y. 2006) (citing Schmitz v. Bernstein, Liebhard & Lifshiftz, LLP,
376 F.3d 79, 83 (2d Cir. 2004)).
If the statutory requirements are met, a district court, in its discretion, may
grant the application. Kiobel, 895 F.3d at 244. The Supreme Court has identified
four discretionary factors (referred to below as the Intel factors) a district court may

5

Case 1:21-mc-00640-GHW-JLC Document 63 Filed 08/22/22 Page 6 of 18

consider when ruling on a Section 1782 request: (1) whether the person from whom
the discovery is sought is a participant in the foreign proceeding; (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. federalcourt judicial assistance; (3) whether the Section 1782 request conceals an attempt
to circumvent foreign proof-gathering restrictions or other policies of a foreign
country or the United States; and (4) whether the Section 1782 application contains
unduly intrusive or burdensome discovery requests. See Intel Corp. v. Advanced
Micro Devices, Inc., 542 U.S. 241, 264–65 (2004). Courts must exercise their
discretion in light of the “twin aims” of Section 1782: “providing efficient assistance
to participants in international litigation and encouraging foreign countries by
example to provide similar means of assistance to our courts.” Id. at 252 (citation
omitted).
B. Section 1782 Statutory Elements
The statutory elements of Section 1782 have been satisfied and they are not
in dispute. Each element is thus only briefly addressed in turn below.
1. Residency Requirement
Section 1782 provides that “[t]he district court of the district in which a
person resides or is found,” may order discovery to be taken from that person. 28
U.S.C. § 1782(a). Based on the record, Respondents are found in the Southern
District of New York. See Bento Decl., Exhs. 3–10.

6

Case 1:21-mc-00640-GHW-JLC Document 63 Filed 08/22/22 Page 7 of 18

2. For Use in a Foreign or International Tribunal
The Court next considers whether the judicial assistance sought by Alberto
satisfies the requirement “for use in a proceeding in a foreign or international
tribunal.” 28 U.S.C. § 1782(a). Alberto asserts that the discovery will be used in
civil proceedings in Switzerland, with the Juge de Commune de Crans-Montana, in
which he seeks to invalidate the two wills in question. See Pet. Mem. at 18–19;
Second Wilson Decl. ¶5. Accordingly, the evidence sought through this Section 1782
application is “for use” in proceedings in a Swiss Court, which qualifies as a
“proceeding in a foreign . . . tribunal.” Intel, 542 U.S. at 257–58. Thus, the evidence
sought by Alberto is “for use” in a proceeding before a foreign tribunal.
3. Interested Person
Finally, the Court reviews whether Alberto is an “interested person” within
the meaning of the statute. Section 1782 provides that the district court may issue
an order for discovery “upon the application of any interested person.” 28 U.S.C. §
1782(a). In Intel, the Supreme Court provided that “litigants are included among,
and may be the most common example of, the ‘interested person[s]’ who may invoke
[Section] 1782.” 542 U.S. at 256 (citation omitted).
In this case, Alberto meets the “any interested person” standard of Section
1782 because he is a party in the testamentary proceedings pending before the
Swiss court. Jeandin Decl. ¶11. Alberto thus has a significant interest in obtaining
judicial assistance and satisfies this element as well.

7

Case 1:21-mc-00640-GHW-JLC Document 63 Filed 08/22/22 Page 8 of 18

C. Section 1782 Discretionary Factors
A district court is not required to grant a Section 1782 application simply
because it has the authority to do so. See Intel, 542 U.S. at 264. Rather, once the
statutory requirements are met, a district court has discretion to determine
whether, and to what extent, to honor a request for assistance under Section 1782.
See id. If the district court permits discovery under Section 1782, it “may prescribe
the practice and procedure, which may be in whole or part the practice and
procedure of the foreign country,” for taking testimony or producing documents. 28
U.S.C § 1782(a). In addition, the district court should consider the statute’s “twin
aims” discussed supra at 6.
Applying the four Intel factors to this case, the Court concludes that Alberto’s
application should be granted.
1. Jurisdictional Reach of Foreign Tribunal
The first Intel factor provides:
when the person from whom discovery is sought is a participant in the
foreign proceeding . . . 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. A foreign tribunal has
jurisdiction over those appearing before it, and can itself order them to
produce evidence. In contrast, nonparticipants in the foreign
proceedings may be outside the foreign tribunal’s jurisdictional reach;
thus, their evidence, available in the United States, may be
unobtainable absent § 1782(a) aid.
Intel, 542 U.S. at 264. Here, the material sought by subpoena might not be
accessible by means other than Section 1782, because none of the subpoena targets
is a party to the proceeding in Switzerland and thus may not be within the Swiss

8

Case 1:21-mc-00640-GHW-JLC Document 63 Filed 08/22/22 Page 9 of 18

court’s jurisdictional reach. Wilson Decl. ¶37. This factor favors allowing Alberto to
obtain the discovery he seeks.
Vicky argues that this factor weighs against allowing Alberto to obtain the
discovery because “Swiss courts routinely seek voluntary testimony from witnesses
located outside Switzerland,” and if Respondents refuse to testify voluntarily, they
could be compelled to do so under the Hague Convention. Opp. at 8; Piotet Decl.
¶26. Whether Respondents may be asked or compelled to testify by the Swiss court,
however, is not relevant to the pending Application, and appears to function as a
“quasi-exhaustion” requirement, which the Second Circuit has held does not exist
for an application pursuant to Section 1782. See In re Application for an Ord.
Permitting Metallgesellschaft AG to take Discovery, 121 F.3d 77, 79 (2d Cir. 1997). 3
In addition, Vicky argues that each Respondent could be considered a
“participant,” Opp. at 7, in which case the first Intel factor provides that “the need
for [Section] 1782(a) aid generally is not as apparent.” Intel, 542 U.S. at 264. Vicky
contends that courts have not clearly defined “participant,” and the term could

In the Porpora Declaration attached to Vicky’s sur-reply, her counsel reports that
he spoke by telephone with Respondents’ counsel and came to an agreement
whereby Respondents will “negotiate in good faith” to provide testimony directly in
the Swiss proceeding “via video or other remote means” but only on the condition
that they not be “required to sit for deposition now” and also not required to travel
to Switzerland to testify in person at the Swiss proceeding. Porpora Decl. ¶5.
Because the Porpora Declaration is attached to the Sur-reply, which the Court is
disregarding on this Application, I will not consider for this apparent arrangement.
However, as a practical matter, given that both Alberto and Respondents have
stated that they are in communication with each other, see Resp. Brief at 2, Pet.
Reply at 8, n.7, Vicky’s counsel’s telephone call with Respondents’ counsel is of little
significance in any event.
3

9

Case 1:21-mc-00640-GHW-JLC Document 63 Filed 08/22/22 Page 10 of 18

mean “anyone who might appear before the foreign tribunal as a witness.” Opp. at
7. In support of this proposition, she cites to In re Application of the Coal. to Protect
Clifton Bay, Louis Bacon for an Ord. Pursuant to 28 U.S.C. Section 1782 to Conduct
Discovery for use in Foreign Proc., No. 14-MC-258 (DLC), 2014 WL 5454823, at *3
(S.D.N.Y. Oct. 28, 2014) (“Clifton Bay”). However, Clifton Bay, as Alberto points
out, is distinguishable because the nonparty witness in that case agreed in writing
to testify in the foreign proceeding. Id. Here, Respondents have not agreed in
writing to testify. 4 Even if Clifton Bay were analogous, in that case, with regard to
the first Intel factor, the court stated that while the respondent might be considered
a participant in the proceeding, “[the] factor does not weigh so strongly as to end the
analysis.” Id. The same is true here.
2. Nature and Receptivity of Foreign Tribunal
The second Intel factor provides that a district court ruling on a Section 1782
application may consider “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.” Intel, 542 U.S. at
264. However, a district court’s production-order authority is not limited only to
“materials that could be discovered in the foreign jurisdiction if the materials were
located there.” Id. at 260. Absent objection to U.S. federal-court judicial assistance,
such a categorical restriction would undermine Section 1782’s objective to assist

Notably, the telephone conversation between Vicky’s counsel and Respondents’
counsel is not memorialized in a written agreement that is in the record before the
Court.

4

10

Case 1:21-mc-00640-GHW-JLC Document 63 Filed 08/22/22 Page 11 of 18

foreign tribunals in obtaining relevant information that is unavailable under their
own laws. Id. at 261–62. Further, objection to U.S. federal-court judicial assistance
would have to come from an official source, such as an agent of the Swiss
government. See Schmitz, 376 F.3d at 84 (district court denied discovery request
where German Ministry of Justice and local German prosecutor explicitly asked
district court to deny it).
Alberto posits—and his Swiss counsel corroborates—that “Swiss courts will
be receptive to evidence obtained through [the] Application,” and that Alberto “will
have the opportunity to use the information obtained in this Application in
advancing and proving his claims.” Pet. Mem. at 28; Wilson Decl. ¶¶40–41. In
addition, in his declaration, Professor Jeandin states that under Swiss law, the
deposition transcripts could be considered physical records, and if the Swiss court
determines they are legally relevant, they will be admissible. Jeandin Decl. ¶¶29–
30. Accordingly, it appears that the Swiss tribunal is likely to be receptive to this
discovery. In response, Vicky directs the Court’s attention to the fact that in Swiss
proceedings, witnesses are examined directly by the court, not by attorneys, so the
testimony from a U.S. deposition will not be admissible. Opp. at 9, Piotet Decl.
¶¶21–22. In light of this fact, Vicky argues, asking the doctors to sit for depositions
in the United States would be unduly burdensome. Opp. at 9, n.1.
The Court need not decide whether the discovery will be admissible in
Switzerland to be discoverable here, as that is a decision for the Swiss courts. See,
e.g., Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76, 82 (2d Cir.

11

Case 1:21-mc-00640-GHW-JLC Document 63 Filed 08/22/22 Page 12 of 18

2012) (“requiring a district court to apply the admissibility laws of the foreign
jurisdiction would require interpretation and analysis of foreign law and such
‘[c]omparisons of that order can be fraught with danger’”) (internal citations
omitted). The Second Circuit has made clear that district courts should avoid
undertaking “an extensive examination of foreign law” that would likely lead to a
“superficial” ruling based on “a battle-by-affidavit of international legal experts.”
Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d 1095, 1099 (2d Cir. 1995). Courts
should only find that the requested discovery would be rejected in the foreign
proceeding if the opponent of the Section 1782 application presents “authoritative
proof . . . that specifically address the use of evidence gathered under foreign
procedures.” Id. at 1100. Authoritative proof consists of the “forum country’s
judicial, executive or legislative declarations that specifically address the use of
evidence gathered under foreign procedures.” Id.; see also Schmitz, 376 F.3d at 84.
By contrast, proof resting on equivocal interpretations of foreign policy or law
generally provides an insufficient basis to deny discovery. See, e.g., In re
Application of Grupo Qumma, No. M8-85 (DC), 2005 WL 937486, at * 3 (S.D.N.Y.
Apr. 22, 2005) (granting Section 1782 discovery application where foreign court’s
receptiveness to discovery was in dispute). Rather, in such cases the Second Circuit
has instructed that district courts generally should err on the side of permitting the
requested discovery. See Euromepa, 51 F.3d at 1101. Such a liberal construction
owes to the availability of corrective measures abroad; for example, the foreign
tribunal may simply choose to exclude or disregard the discovered material should

12

Case 1:21-mc-00640-GHW-JLC Document 63 Filed 08/22/22 Page 13 of 18

that tribunal find that the district court overstepped its bounds in ordering the
discovery. See id.; Grupo Qumma, 2005 WL 937486, at *3.
Here, Vicky relies on the declaration of Prof. Dr. Piotet to argue that the
discovery Alberto requests would not be used in the Swiss proceeding and so the
doctors will be forced to sit for depositions a second time following Swiss procedure.
Opp. at 3. Prof. Dr. Piotet’s Declaration does not meet the standard of
“authoritative proof” as laid out in Euromepa because it is not a declaration issued
by the Swiss judicial, executive, or legislative branch. Thus, the Court cannot say
definitively that Swiss courts will reject the discovery and that the doctors will have
to sit for depositions again. 51 F.3d at 1101; see also In re Ex Parte Application of
Porsche Automobil Holding SE for an Ord. Pursuant to 28 U.S.C. §1782 Granting
Leave to Obtain Discovery for Use in Foreign Proc., No. 15-MC-417 (LAK), 2016 WL
702327, at *8 (S.D.N.Y. Feb. 18, 2016) (“District courts have been instructed to
tread lightly and heed only clear statements by foreign tribunals that they would
reject Section 1782 assistance.”) (citation and quotation marks omitted). Further,
the Court cannot determine with certainty whether the Swiss court will have the
power to compel the doctors to participate in the Swiss proceeding if they choose not
to cooperate. Accordingly, the second factor weighs in Alberto’s favor.
3. Attempt to Circumvent Foreign Proof-Gathering
Restrictions and Policies
The third Intel factor seeks to identify “attempt[s] to circumvent foreign
proof-gathering restrictions or other policies of a foreign country or the United
States.” Intel, 542 U.S. at 264–65. However, Section 1782 “contains no foreign-

13

Case 1:21-mc-00640-GHW-JLC Document 63 Filed 08/22/22 Page 14 of 18

discoverability requirement.” Mees v. Buiter, 793 F.3d 291, 303 (2d Cir. 2015). As
discussed above, “nothing in the text of [Section] 1782 limits a district court’s
production-order authority to materials that could be discovered in the foreign
jurisdiction if the materials were located there.” Intel, 542 U.S. at 260. In her
opposition to Alberto’s Application, Vicky does not argue that this factor weighs
against granting Alberto’s request. 5 In addition, nothing in the record exists to
establish that Swiss law or policy prohibits this type of discovery such that Alberto
is making his application in an attempt to circumvent Swiss law. Wilson Decl. ¶41.
Perhaps the deposition testimony will not be admissible in the Swiss proceeding as
“witness evidence,” as Vicky suggests; however, it might be admissible as “physical
records.” Jeandin Decl. ¶30. As discussed above, it is not the place of this Court to
analyze Swiss law to consider the potential admissibility of the discovery in the
absence of some authoritative proof that it will not be allowed. Further, Section
1782 does not contain an exhaustion requirement that would impose upon an
applicant a duty to first seek the requested discovery from the foreign court. See,
e.g., Application of Malev Hungarian Airlines, 964 F.2d 97, 100 (2d Cir. 1992). The
fact that Alberto requested relief under Section 1782 without first seeking relief in
Switzerland therefore does not suggest that in doing so, Alberto was attempting to

In her sur-reply, Vicky alleges that Alberto seeks this discovery for use in a
private arbitration proceeding he commenced in the United Kingdom, and is using
the Swiss proceeding as a pretense, because Section 1782 does not allow discovery
for use in a private arbitration. Sur-reply at 4–5; Porpora Decl. ¶4. Even if the surreply were allowed, Vicky has provided no evidence to support her allegation that
she believes Alberto is going to use the discovery collected from this application in
his arbitration; this allegation appears to be mere speculation.
5

14

Case 1:21-mc-00640-GHW-JLC Document 63 Filed 08/22/22 Page 15 of 18

circumvent the rules of the foreign tribunal. Accordingly, this factor favors granting
discovery.
4. Unduly Intrusive or Burdensome Request
The final Intel factor directs courts to be mindful of overly intrusive or
burdensome discovery requests. Intel, 542 U.S. at 264–65. “[A] district court
evaluating a [Section] 1782 discovery request should assess whether the discovery
sought is overbroad or unduly burdensome by applying the familiar standards of
Rule 26 of the Federal Rules of Civil Procedure.” Mees, 793 F.3d at 302.
Furthermore, the Second Circuit has instructed that “it is far preferable for a
district court to reconcile whatever misgivings it may have about the impact of its
participation in the foreign litigation by issuing a closely tailored discovery order
rather than by simply denying relief outright.” Euromepa, 51 F.3d at 1101; see also
Malev, 964 F.2d at 102 (Section 1782 and Federal Rule of Civil Procedure 26 furnish
district courts with broad discretion to impose reasonable limitations upon
discovery).
Vicky opposes Alberto’s request to depose Respondents, arguing it is
burdensome because the testimony might not be admissible in the Swiss
proceedings. Opp. at 10. As discussed above, this argument has no merit given the
lack of authoritative proof that the testimony will not be admissible and moreover,
it is not the Court’s role to decide what is admissible in Swiss courts. Vicky further
argues, without support, that the hospital Respondents will not be able to provide
testimony regarding information outside of the medical records they maintain. Id.

15

Case 1:21-mc-00640-GHW-JLC Document 63 Filed 08/22/22 Page 16 of 18

at 7. Alberto responds that the hospital Respondents may be able to provide
information beyond what the doctors know, “including information about additional
treatments or therapies that [J. Safra] may have undergone.” Pet. Reply at 8. As
such, the requests to depose Respondents do not appear to be unduly burdensome
(nor do Respondents themselves advance such an argument).
While she does not oppose the document requests for medical records that
bear on Joseph’s mental condition in 2019, Vicky opposes Alberto’s request as
overbroad and unduly burdensome because it requests medical records for 2018
through 2020, even though Alberto is only contesting wills from November and
December of 2019. Opp. at 10. Vicky explains that “if the question is [Joseph’s]
mental capacity on three days in November and December 2019 when he executed
the challenged wills, then [Alberto] does not need medical records from 2018
through 2020.” Id. at 12. However, Vicky provides no support for this argument.
Alberto maintains that the documents from the three-year period are relevant
because doctors started treating Joseph for his mental ailments in 2018 and
obtaining records through 2020 will provide greater context as to Joseph’s mental
condition at the end of 2019, when he executed the wills in question. Pet. Reply at
9. In support of his position, Alberto has included the declaration of Dr. Sheila
Wendler, who explains that the medical records from 2018 through 2020 are
“directly relevant to assessing [Joseph’s] mental condition at the time he executed”
the new wills. Wendler Decl. ¶¶16–17.

16

Case 1:21-mc-00640-GHW-JLC Document 63 Filed 08/22/22 Page 17 of 18

Notably, Respondents have not objected to the document requests. Resp.
Brief. at 2. Therefore, while it does not appear that the requests are overbroad or
burdensome, it is of no moment because Respondents, the targets of the request,
have not opposed them.
As Section 1782 provides that discovery conducted pursuant to the statute
must comply with the Federal Rules of Civil Procedure unless otherwise directed by
the Court, and Alberto’s proposed subpoenas provide the text of Rule 45(c)–(d), the
Court is persuaded that the discovery sought will further the “twin aims” of the
statute while encouraging a targeted approach.
5.

Summary

In sum, the Intel factors weigh in favor of granting Alberto’s application. If
Respondents seek to narrow the scope and number of the requested depositions,
they may do so through a meet-and-confer with Alberto’s counsel. There is nothing
in the record to suggest counsel will not be able to come to an agreement on their
own.
III.

CONCLUSION

For the foregoing reasons, Alberto’s Application pursuant to section 1782 is
granted. Alberto is hereby authorized to serve the subpoenas annexed as Exhibit 2
to the declaration of Lucas Bento upon Respondents Drs. Tabar, Diamond, Fuster,
Bressman, Mount Sinai Health System, and Memorial Sloan Kettering Cancer. All
discovery produced by Respondents is subject to the entry of an appropriate
protective order, given the sensitive nature of the discovery that is the subject of the
subpoenas.
17

Case 1:21-mc-00640-GHW-JLC Document 63 Filed 08/22/22 Page 18 of 18

The Clerk is respectfully directed to close Docket No. 1 and mark it as
“granted,” and to close the letter-motion at Docket No. 59 and mark it as “denied.”
SO ORDERED.
Dated: August 22, 2022
New York, New York

18