Watkins v. Ellesse LLC et al
Filing
43
MEMORANDUM OPINION AND ORDER for 36 Report and Recommendations, In summary, the R&R correctly found that each Intel factor favored the petitioners. The Court has considered all of the parties' arguments. To the extent not specifically a ddressed above, those arguments are either moot or without merit. For the reasons explained above, the respondents' objections to the R&R are overruled and the petitioner is authorized to serve the request for discovery as authorized in the R&R. The Clerk is directed to close this case. SO ORDERED. (Signed by Judge John G. Koeltl on 10/25/2024) (ks)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
───────────────────────────────────
EDUARDO COHEN WATKINS,
Plaintiff,
- against -
24-mc-23 (JGK)
MEMORANDUM OPINION
AND ORDER
ELLESSE LLC, ET AL.,
Defendants.
───────────────────────────────────
JOHN G. KOELTL, District Judge:
The petitioner, Eduardo Cohen Watkins (“Watkins”), filed an
ex parte Application and Petition (the “Application”) pursuant
to 28 U.S.C. § 1782, seeking an order authorizing the petitioner
to serve subpoenas on the respondents, Ellesse LLC (“Ellesse”)
and Stephen Lamb (“Lamb”), to obtain discovery for use in two
pending Swiss lawsuits (the “Swiss Actions”). On July 26, 2024,
Magistrate Judge Tarnofsky issued a Report and Recommendation
(“R&R”) recommending that the Court grant the Application with
some modifications. See In re Watkins, No. 24-mc-23, 2024 WL
4264900 (S.D.N.Y. July 26, 2024). The respondents filed
objections to Magistrate Judge Tarnofsky’s R&R. See ECF No. 40.
For the following reasons, the objections to the R&R are
overruled.
I.
Lily Safra (“Safra”) passed away in 2022. Wilson Opening
Decl. ¶ 12, ECF No. 8. The petitioner is her son. Id. ¶ 9.
During Safra’s lifetime, she signed several wills, including
wills executed in 1983, 1995, 2009, and 2013. Wilson Reply Decl.
¶ 8-13, ECF No. 23. The parties dispute the validity of certain
of these wills. Id. ¶ 15.
The petitioner contends that the 2013 will is “plagued with
issues.” Mem. in Opp. to Objection to R&R (“Opp. Mem.”) at 5,
ECF No. 42.1 First, the petitioner alleges that one of the
witnesses, Max Coslov (“Coslov”), was incompetent to witness the
will because he sits on the board of the Lily Safra Foundation
(the “Foundation”)—a major beneficiary of the will. Id. The
petitioner further alleges that Safra’s choice of Brazilian law
is invalid because she renounced her Brazilian citizenship, that
Coslov and his colleague Ezra Marcos (“Marcos”) pressured Safra
to alter her will, and that Safra’s bequests to Coslov and the
Foundation were premised on the mistaken belief that Coslov and
Marcos would manage the Foundation “soundly and consistent with
their fiduciary duties.” Id. The petitioner raises similar
concerns regarding the 2009 will. Id.
Under both Brazilian and Swiss estate law, a “forced share”
is reserved for certain heirs although the countries differ as
to how much of the estate will be reserved. Bohnet Decl. ¶ 35,
ECF No. 23-1. Under Swiss law an heir whose forced share has
Unless otherwise noted, this Opinion and Order omits all
alterations, omissions, emphasis, quotation marks, and citations
in quoted text.
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been infringed is entitled to a reduction action to reduce the
decedents’ other bequests and to restore the forced share. Id. ¶
36. Prior to bringing either a reduction action or a nullity
action to have a will declared void, a claimant must participate
in a conciliation proceeding before a judge. Id. ¶ 43.
In this case, the petitioner commenced a conciliation
proceeding in anticipation of bringing an action in the Court of
First Instance of the Canton of Geneva to (1) declare the 2013
will void, or alternatively, find certain of its bequests and
its choice of Brazilian inheritance law void and (2) to decide a
reduction claim (collectively, the “Nullity Action”). Id. ¶ 50.
Meanwhile, Safra’s allegedly adopted son, Carlos Monteverde
(“Monteverde”), also commenced a conciliation proceeding,
seeking a declaration that he is one of Safra’s heirs, and that
he is entitled to a forced share that has been infringed (the
“Reduction Action”). Id. ¶¶ 48-49. Both conciliations failed and
Watkins and Monteverde were authorized to proceed with the Swiss
Actions. Id. ¶ 47. The actions ultimately ask the Swiss Court to
decide whether Watkins and/or Monteverde’s claimed forced shares
have been infringed, and if so, by how much.
The petitioner brought this action against Respondents Lamb
and Ellesse, alleging that they possess documents relevant to
the Swiss Actions. Mem. of L. in Supp. of Mot. for Discovery
(“Mot. for Discovery”), ECF 6. Lamb managed Ellesse—a Delaware3
registered private foundation and trust—and handled Safra’s New
York affairs. Wilson Opening Decl. ¶¶ 10-11. Specifically, the
petitioner sought (1) all documents and communications related
to Safra’s estate; (2) all documents and communications related
to any assets that were at any time part of Safra’s estate,
including the location and value of such assets; (3) all
documents and communications related to any Safra trusts; and
(4) all documents and communications related to any assets that
were at any time part of any trusts, including the location and
value of such assets. See Alston Decl., Ex. B. at 11-12, ECF.
No. 7.
The Magistrate Judge issued a thorough R&R that recommended
narrowing and modifying the Application and granting the § 1782
request with respect to (1) testamentary documents; (2)
documents relating to Safra’s relationship with Monteverde,
Coslov and Marcos, and any relatives identified by the
petitioner; (3) documents relating to Safra’s citizenship and
residency; (4) documents sufficient to identify Safra’s assets
at some discrete points in time, including the location and
value of any such assets if known to the respondents;
(5)communications with Coslov or Marcos, the family office, or
the Lily Safra or Lily Safra Hope Foundations about the estate,
trusts, or foundations; (6) documents relating to transactions
that Coslov or Marcos caused the family office trusts, or
4
foundations to make; (7) communications with Stephen Gardner or
Richard Rothberg or any other trustees whose names are provided
by the petitioner; and (8) documents relating to the
establishment or dissolution of trusts or distributions
therefrom. See In re Watkins, 2024 WL 4264900, at *11-12.2 The
R&R also conditioned its grant of the petitioner’s application
on the issuance of a protective order limiting the use of the §
1782 discovery to the Swiss Actions. Id. at *12.
II.
“Although a magistrate may hear dispositive pretrial
motions, [the magistrate] may only submit proposed findings of
fact and recommendations for disposition of the matter.” Thomas
E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir.
1990). A district judge reviews de novo a Magistrate Judge’s R&R
and must “arrive at its own, independent conclusion about those
portions of the magistrate’s report to which objection is made.”
Nelson v. Smith, 618 F. Supp. 1186, 1189-90 (S.D.N.Y. 1985). By
contrast, for “nondispositive pretrial matters, . . . the
Following an Order by the Magistrate Judge directing the
respondents to identify the burden the respondents would face if
the Court were to modify the petitioner’s requests for “all
documents” to a request for “documents sufficient to show,” see
ECF No. 28, the petitioner updated its initial request list with
a list of eight specific requests, ECF No. 33. The R&R
incorporates most of these updated requests.
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magistrate may issue orders.” In re Hulley Enters. Ltd., 400 F.
Supp. 3d 62, 69 (S.D.N.Y. 2019).
Previously, “the consensus view in this District was that
‘rulings on § 1782 applications are not dispositive’” and could
be disposed of by order of a magistrate judge. See In re Libyan
Asset Recovery and Mgmt. Off., No. 21-mc-852, 2023 WL 8445811,
at *1 n.1 (S.D.N.Y. Nov. 16, 2023) (quoting In re Hulley, 400 F.
Supp. 3d at 71). However, in a recent unreported order, the
Second Circuit Court of Appeals determined it lacked
jurisdiction to review an order by a magistrate judge denying a
§ 1782 Application and remanded for the order to be “treated as
a report and recommendation.” Associacao dos Profissionais dos
Correios v. Bank of N.Y. Mellon Corp., No. 22-2865, 2023 WL
3166357, at *1 (2d Cir. Mar. 28, 2023).
In this case, the Magistrate Judge issued an R&R, taking
the view that a decision granting a § 1782 application may be
dispositive. See In re Watkins, 2024 WL 4264900, at *1 n.1.
Accordingly, this Court has reviewed the R&R de novo.
III.
28 U.S.C. § 1782 permits a district court “upon the
application of any interested person,” to order a person within
its jurisdiction “to produce a document or other thing for use
in a proceeding in a foreign or international tribunal.” 28
U.S.C. § 1782(a). Section 1782 is discretionary: it “authorizes,
6
but does not require,” district courts to provide assistance to
discovery applicants in foreign proceedings. See Intel Corp. v.
Advanced Micro Devices, Inc., 542 U.S. 241, 247 (2004). Section
1782 also provides district courts with discretion to tailor
discovery “to avoid attendant problems.” Application of Esses,
101 F.3d 873, 876 (2d Cir. 1996).
To obtain discovery pursuant to § 1782, the applicant must
satisfy the following statutory requirements:
(1) that the person from whom discovery is
sought reside (or be found) in the district of
the district court to which the application is
made[;] (2) that the discovery be for use in
a proceeding before a foreign tribunal[;] and
(3) that the application be made by a foreign
or international tribunal or “any interested
person.”
Id. at 875. Provided the applicant satisfies the statutory
requirements, a district court may grant discovery but must
exercise its discretion “in light of the twin aims of the
statute: 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.” Schmitz v. Bernstein
Liebhard & Lifshitz, LLP, 376 F.3d 79, 84 (2d Cir. 2004).
The Supreme Court has identified four discretionary factors
for district courts to consider in determining whether to grant
§ 1782 applications. See Intel, 542 U.S. at 264-65. The Intel
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factors include: (1) whether “the person from whom discovery is
sought is a participant in the foreign proceeding”—in which
case, the need for § 1782 is not as readily apparent; (2) “the
nature of the foreign tribunal, the character of the proceedings
underway abroad, and the receptivity of the foreign government
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 restrictions or
other policies of a foreign country or the United States”; and
(4) whether the request is “unduly intrusive or burdensome.” Id.
IV.
In this case, the petitioner has satisfied the statutory
requirements of § 1782. As the respondents concede, the
petitioner met the first and third statutory factors. Ellesse
has its principal place of business in New York and Lamb resides
in this District, and therefore, “the person[s] from whom
discovery is sought reside . . . in the district of the district
court to which the application is made.” See Application of
Esses, 101 F.3d at 875.
Moreover, the petitioner brought the
Nullity Action and therefore easily satisfies the “interested
party” requirement.
The respondents contest only the second statutory
requirement: that the discovery be “for use” before a foreign
tribunal. The respondents contend that: (1) the requested
8
information about the estate and its assets is not “for use” in
the Swiss Actions “because [the] [p]etitioner must first obtain
favorable decisions on issues in both of the Swiss Actions
before the requested evidence becomes relevant”; and (2) the
other requested documents either were not requested in the
petitioner’s initial Application or are irrelevant to the Swiss
Actions. Mem. in Supp. of Objection to R&R (“Objection”) at 8-9,
ECF No. 40.
“The ‘for use’ statutory prerequisite assesses ‘the
practical ability of an applicant to place a beneficial
document—or the information it contains—before a foreign
tribunal.” In re BonSens.org, 95 F.4th 75, 80 (2d Cir. 2024)
(quoting In re Accent Delight Int’l Ltd., 869 F.3d 121, 131 (2d
Cir. 2017)).3 In short, the requested discovery must “be employed
with some advantage or serve some use in the proceeding.” In re
Accent, 869 F.3d at 132. Implicit in the “for use” requirement
is a threshold requirement that the foreign proceeding be
“adjudicative in nature.” See Euromepa, S.A. v. R. Esmerian,
Inc., 154 F.3d 24, 27 (2d Cir. 1998). If the foreign proceeding
is adjudicative in nature, as the Swiss Actions are, then
“[a]pplicants need only make a de minimis showing that the
However, the evidence does not need to be admissible in the
foreign proceeding. Brandi-Dohrn v. IKB Deutsche Industriebank
AG, 673 F.3d 76, 82 (2d Cir. 2012).
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9
requested discovery is ‘for use’ in the proceeding.” In re
Children’s Inv. Fund Foundation (UK), 363 F. Supp. 3d 361, 371
(S.D.N.Y. 2019); see also In re Veiga, 746 F. Supp. 2d 8, 18
(D.D.C. 2010) (collecting cases for the proposition that “the
burden imposed upon an applicant is de minimis.”).
However, a § 1782 applicant may not have the “practical
ability” to place discovery before a foreign tribunal where the
applicant is not a participant in the foreign proceeding and has
no means of ensuring the foreign tribunal considers the
requested discovery. See IJK Palm LLC v. Anholt Servs. USA,
Inc., 33 F.4th 669, 680 (2d Cir. 2022) (finding that there must
be a “procedural mechanism by which [the applicant] may inject
the discovery it seeks into foreign proceedings”); Certain
Funds, Accts. and/or Inv. Vehicles v. KPMG, L.L.P. (“KPMG”), 798
F.3d 113, 118 (2d Cir. 2015) (finding “considerable overlap
between” the “interested person” and “for use” requirements on
the grounds that both involve “the applicant’s ability to use
the evidence it sought in the U.S. courts before the foreign
administrative tribunal”). While a foreign proceeding need not
be pending, or even imminent, to satisfy this requirement, it
must be “within reasonable contemplation.” Mangouras v. Squire
Patton Boggs, 980 F.3d 88, 100 (2d Cir. 2020) (quoting Intel,
542 U.S. at 259).
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Similarly, an applicant may not have the “practical
ability” to place evidence before a foreign tribunal where the
requested information would be irrelevant and of no use in the
foreign proceeding. See KPMG, 798 F.3d at 120 n.7 (“[I]t is
difficult to conceive how information that is plainly irrelevant
to the foreign proceeding could be said to be ‘for use’ in that
proceeding.”). However, the applicant’s burden to demonstrate
relevance is slight. See BonSens, 95 F.4th at 80 (applicant must
demonstrate the evidence sought is at least “minimally relevant
to the foreign proceeding”); Mees v. Buiter, 793 F.3d 291, 298
(“[D]iscovery sought pursuant to § 1782 need not be necessary
for the party to prevail in the foreign proceeding in order to
satisfy the statute’s ‘for use’ requirement.”).
A.
Magistrate Judge Tarnofsky correctly found that the
requested documents relating to the value of the estate’s assets
are “for use” in the Swiss Actions. The petitioner—a party to
the pending Swiss Actions—has the “practical ability” to place
the evidence relating to the value of the estate before the
Swiss Court.
The respondents rely on IJK Palm to contend that discovery
regarding the estate’s assets is not “for use” in the Swiss
Actions because the Swiss court may not reach the question of
the estate’s value. Objection at 9. That case held that the “for
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use” requirement was not satisfied, where the applicant would
have needed to “clear a series of procedural hurdles under
[foreign] law before it [could] present any evidence to [the
foreign] court.”4 IJK Palm, 33 F.4th at 680. The respondents
argue that the presence of threshold questions about the 2013
will’s validity and Monteverde’s status as an heir present
similar procedural hurdles in this case. However, in IJK Palm,
no proceeding was “within reasonable contemplation,” because
procedural hurdles prevented the applicant from initiating a
proceeding in which to introduce the evidence. Meanwhile, in
this case, the petitioner is a party to a pending proceeding in
which it can introduce the requested § 1782 discovery.
The respondents also cite BonSens. In that case, two French
courts dismissed the § 1782 applicant’s suit for lack of
jurisdiction. 95 F.4th at 78-79. The applicant appealed the
jurisdictional issue to the Conseil d’Etat—the highest
In IJK Palm, the petitioner had no authority under Cayman
Islands law to file suit because the company had entered
liquidation proceedings and Cayman law only permitted the
liquidators to sue on the company’s behalf. 33 F.4th at 677. The
petitioner contended that it could use the discovery materials
to persuade the liquidators to sue on behalf of the company. Id.
Alternatively, the petitioner contended that it could bring its
own suit if the liquidators refused, but this option required
leave of the Cayman court and the petitioner could not point to
a similar double-derivative case where the court had granted
leave. Id. at 677. 679-80. The Second Circuit Court of Appeals
reasoned that these hypothetical proceedings were too
speculative.
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administrative court in France—and sought to introduce discovery
obtained through § 1782, as permitted by the Conseil d’Etat’s
procedural rules. See id. at 78-79, 81. However, the requested
discovery did not pertain to the jurisdictional issue on appeal
to the Conseil d’Etat, and the Second Circuit Court of Appeals
determined that “at this stage of the proceeding, there is no
objective basis from which [to] conclude that the Conseil
d’Etat’s decision on the jurisdictional issue will be favorable
to BonSens.” Id. at 81. The Second Circuit Court of Appeals held
that if the applicant’s ability to “initiate a proceeding in
which the requested discovery may be used ‘depends on some
intervening event or decision,’ the applicant must ‘provide an
objective basis on which to conclude that the event will occur
or the requisite decision will be favorable.’” Id. at 80-81
(quoting IJK Palm, 33 F.4th at 680).
By contrast, in this case, the petitioner’s position on the
threshold questions has not been rejected by multiple lower
courts. Moreover, the petitioner’s Swiss law expert contends
that the Swiss court will reach the petitioner’s reduction claim
regardless of its determination of the 2013 will’s validity or
Monteverde’s status. Bohnet Decl. ¶¶ 51-52 (“In both the
Reduction Action and the Nullity Action, whether or not the
Swiss court decides that Swiss inheritance law applies or the
13
2013 will is invalid, it will need to establish the value of the
estate . . . .”).
The threshold questions merely dictate whether the
petitioner’s reduction will be premised on the 2013 will and
whether Monteverde will also be included in the forced share
calculations. They do not prevent the Swiss court from reaching
the question of the estate’s valuation—which is included in the
petitioner’s prayer for relief. See Jendin Decl. ¶ 8, ECF No.
27. While the respondents’ Swiss law expert asserts that “it is
highly likely that the Swiss Court will simplify the
proceedings, by limiting them to the issues of the invalidity of
the will and the choice of law,” see id. ¶ 15, this possibility
does not amount to the sort of procedural hurdle faced by the
applicants in BonSens and IJK Palm. Moreover, even if the Swiss
court chooses to divide the proceedings, the Second Circuit
Court of Appeals has concluded that the “for use” requirement is
met provided “there are circumstances under which” the foreign
tribunal “could hear” the evidence “regardless of how narrow
those circumstances might be.” Brandi-Dohrn, 673 F.3d at 83.
B.
Magistrate Judge Tarnofsky also correctly determined that
discovery of testamentary documents, citizenship and residency
documents, and documents related to Monteverde and Coslov and
14
Marcos are relevant to the threshold issues in this case and are
“for use” in the Swiss Actions.
The respondents object that the petitioner’s Application
sought only documents about the “Safra Estate”—and first
referenced testamentary documents and documents about Safra’s
citizenship in their reply brief. Objection at 9. They contend
that because the Application is silent as to these specific
documents, “there is no basis to conclude that [the]
[p]etitioner will actually raise any argument in the Swiss
Action as to which those documents would be relevant.” Id.
Magistrate Judge Tarnofsky’s R&R correctly notes that the
general rule that arguments cannot be raised for the first time
on reply is inapplicable where those arguments are raised in
response to an argument first made in the opposing party’s
response papers. See Bravia Cap. Partners, Inc. v. Fike, 296
F.R.D. 136, 144 (S.D.N.Y. 2013). In this case the petitioner
specified his interest in testamentary documents, documents
related to citizenship and residency, and documents related to
Monteverde, Coslov, and Marcos in response to the respondents’
contention that the subpoenas sought information irrelevant to
the Swiss Action. Further, as Magistrate Judge Tarnovsky noted,
the respondents had the opportunity to file a sur-reply.
Moreover, the requested documents are plainly relevant to
the Swiss Actions. Production of documents related to the
15
relationship between Safra and Monteverde is relevant to
Monteverde’s status as an heir—an issue which the Swiss Court
will need to decide. Bohnet Decl. ¶ 49. Documents related to
Safra’s citizenship and residency are relevant to Safra’s
ability to elect Brazilian law—an issue that is also before the
Swiss Court. Testamentary documents are relevant to the Swiss
court’s determination of which of the wills governs the
distribution of the estate. Finally, documents relating to
Coslov and Marcos are relevant to the petitioner’s argument that
the 2013 will is invalid because Coslov was not a competent
witness, because Coslov and Marcos exerted undue influence on
Safra, and because Safra’s bequests to Coslov and the Foundation
were premised on the mistaken belief that he managed her assets
consistent with his fiduciary duties. The possibility that the
petitioner may not raise each of the arguments in the Swiss
Actions does not mean the relevant documents are not “for use”
before the Swiss Court. Documents relating to potential
arguments suffice to satisfy the de minimis “for use”
requirement. See Lancaster Factoring Co. Ltd. v. Mangone, 90
F.3d 38, 42 (2d Cir. 1996).
V.
Finally, Magistrate Judge Tarnofsky correctly concluded
that the discretionary Intel factors all favor the petitioner.
A.
16
The first Intel factor asks whether “the person from whom
discovery is sought is a participant in the foreign proceeding.”
Intel, 542 U.S. at 244. If so, “aid generally is not as apparent
as it ordinarily is when evidence is sought from a
nonparticipant in the matter arising abroad.” Id.
The respondents contend that the petitioner can obtain the
requested evidence from parties to the Swiss proceedings and
that this factor favors them even though Ellesse and Lamb are
not participants in the foreign proceedings. Objection at 12-14.
However, the petitioner specifically seeks documents held by the
respondents in New York. The fact that certain documents in
Switzerland may also relate to the estate’s assets or Safra’s
citizenship or other requested information does not mean that
the Swiss court can compel the production of the New York
documents.
Moreover, to the extent overlap exists between documents
within the jurisdictional reach of the Swiss court and documents
sought in the § 1782 proceeding, that overlap does not mean the
petitioner has failed to satisfy the first Intel factor. See In
re BM Brazil 1 Fundo de Investimento em Participações
Multistratégia, No. 23-mc-208, 2024 Wl 555780, at *10 (S.D.N.Y.
Jan. 18, 2024), report and recommendation adopted, 2024 WL
554302 (S.D.N.Y. Jan. 18, 2024) (“[E]ven if the Subpoenas
embrace a smattering of communications in [the defendant’s]
17
possession that were not previously produced by [the defendant],
that is no reason to condemn [the petitioner’s] entire request
as improper.”); In re Porsche Automobil Holding SE, No. 15-mc417, 2016 WL 702327,
at *8 (S.D.N.Y. Feb. 18, 2016) (concluding
that the first Intel factor favored the petitioner where
discovery was potentially duplicative but there was “no
indication that the disclosures [permitted under German law]
would be sufficiently broad to give [the petitioner] all that it
seeks in this Section 1782 proceeding”).
Further, as Magistrate Judge Tarnofsky noted, the
respondents’ position would impose an exhaustion requirement on
§ 1782 petitioners, forcing them to exhaust the mechanisms for
obtaining discovery in the foreign jurisdiction before
permitting them to bring a § 1782 action. The Court of Appeals
for the Second Circuit has rejected this position, concluding
that a “quasi-exhaustion requirement” “finds no support in the
plain language of the statute and runs counter to its express
purposes.” Mees, 793 F.3d at 303 (quoting In re
Metallgesellschaft AG, 121 F.3d 77, 79 (2d Cir. 1997)).
B.
The second Intel factor permits courts to “take into
account the nature of the foreign tribunal, the character of the
proceedings underway abroad, and the receptivity of the foreign
government . . . to U.S. federal-court judicial assistance.”
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Intel, 542 U.S. at 264. The “[r]espondants do not dispute that
Swiss courts are generally receptive to § 1782 discovery.”
Objection at 14. This concession should end the analysis. The
respondents’ attempt to import the relevance inquiry from the
“for use” statutory factor into the analysis of the secondary
Intel factor is unpersuasive.
C.
The third Intel factor “consider[s] whether the § 1782(a)
request conceals an attempt to circumvent foreign proofgathering restrictions or other policies of a foreign country or
the United States.” Intel, 542 U.S. at 264-65. “Proof-gathering
restrictions” are “rules akin to privilege that prohibit the
acquisition or use of certain materials,” not “rules that fail
to facilitate the investigation of claims by empowering parties
to require their adversarial and non-party witnesses to provide
information.” Mees, 793 F.3d at 303 n.20; see also In re Accent
Delight, 16-mc-125, 2018 WL 2849724, at *4 (S.D.N.Y. June 11,
2018) (concluding that rules regarding timing of discovery and
breadth of requests were “limits on the scope of discovery in
those fora, not proof-gathering restrictions”). In this case,
the respondents have not demonstrated that any of the requested
evidence is barred by a “proof-gathering restriction” rather
than a mere limit on the scope of discovery.
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The respondents contend that the Swiss Procedural Code
permits the taking of evidence only when an issue is before the
Swiss Court and that “the composition of Ms. Safra’s estate is
not currently before (and may never be before) the Swiss Court.”
Objection at 15. However, as explained above in reference to the
respondents’ argument on the “for use” factor, the petitioner’s
reduction claim will likely be decided by the Swiss Court and
the requested information is relevant to that reduction claim.
See Bohnet Decl. at 51-52. Moreover, the petitioner contends
that he must present evidence regarding all his claims—including
his reduction claim—in the complaint. Id. ¶ 22. The issue is
therefore properly before the Swiss Court such that granting the
petitioner’s § 1782 motion would not circumvent Swiss proofgathering mechanisms.
D.
The fourth Intel factor considers whether a request is
unduly burdensome and intrusive. This factor is evaluated under
the same standard as Federal Rule of Civil Procedure 26. Mees,
793 F.3d at 302. That standard limits discovery to matters
relevant and “proportional to the needs of the case.” Fed. R.
Civ. P. 26(b)(1).
In this case, the respondents have failed to set forth an
estimate of the volume of documents requested, the location of
the documents, or the form of the documents. They also have not
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