In Re: Application of Banco BTG Pactual S.A. and Travessia Securitizadora de Creditos Financeiros VIII S.A. for an Order to take Discovery for Use in Foreign Proceedings Pursuant to 28 U.S.C. 1782

Filing 5

ORDER granting 4 Motion FOR JUDICIAL ASSISTANCE IN AID OF FOREIGN PROCEEDINGS PURSUANT TO 28 U.S.C. 1782. For the reasons stated above, the Petition is GRANTED. The Clerk of Court is directed to terminate the motion at ECF No. 4 and to close the case. SO ORDERED. (Signed by Judge Analisa Torres on 7/15/24) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
In re Application of

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: _07/15/2024

BANCO BTG PACTUAL S.A., and TRAVESSIA
SECURITIZADORA DE CRÉDITOS
FINANCEIROS VIII S.A.,
Applicants,
24 Misc. 304 (AT)
Pursuant to 28 U.S.C. § 1782 for Judicial
Assistance in Obtaining Evidence for Use in
Foreign and International Proceedings Pending in
the Federative Republic of Brazil,

ORDER

ANALISA TORRES, District Judge:
On July 1, 2024, Petitioners, Banco BTG Pactual S.A. and Travessia Securitizadora de
Créditos Financeiros VIII S.A., submitted an ex parte petition for an order pursuant to 28 U.S.C.
§ 1782 to obtain discovery for use in two pending legal proceedings in São Paulo, Brazil (the
“Petition”). Pet. ¶ 5, ECF No. 4; see also Pistoresi Decl. ¶¶ 8–10, ECF No. 2. Petitioners seek
permission to serve a subpoena on Admel Properties, Inc. (“Respondent”). Pet. ¶ 15. Petitioner
also seeks to proceed ex parte. Id. ¶¶ 49–50. For the following reasons, the Petition is
GRANTED.
DISCUSSION
I.

Legal Standard
“A district court has authority to grant a § 1782 application where: (1) the person from

whom discovery is sought resides (or is found) in the district of the district court to which the
application is made, (2) the discovery is for use in a foreign proceeding before a foreign or
international tribunal, and (3) the application is made by a foreign or international tribunal or any
interested person.” Mees v. Buiter, 793 F.3d 291, 297 (2d Cir. 2015) (internal quotations and

alterations omitted). Courts routinely grant such petitions ex parte. Gushlak v. Gushlak, 486 F.
App’x 215, 217 (2d Cir. 2012) (“[I]t is neither uncommon nor improper for district courts to
grant applications made pursuant to § 1782 ex parte.”).
In determining whether to grant a § 1782(a) petition, the Court may also consider “(1)
whether the person from whom discovery is sought is a participant in the foreign proceeding, in
which case the need for § 1782(a) aid generally is not as apparent; (2) the nature of the foreign
tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign . . .
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; and (4) whether
the request is unduly intrusive or burdensome.” In re Catalyst Managerial Servs., DMCC, 680
F. App’x 37, 38–39 (2d Cir. 2017) (quoting Intel Corp. v. Advanced Micro Devices, Inc., 542
U.S. 241, 264–65 (2004)) (internal quotation marks omitted).
II.

Analysis
A. Ex Parte Proceeding
Courts routinely grant similar petitions ex parte. Accordingly, Petitioners’ request to

proceed without serving the Petition on Respondent is GRANTED. Gushlak, 486 F. App’x at
217.
B. The Petition
Petitioners have met all three mandatory Mees requirements. First, Petitioners provide
evidence that Respondent maintains offices and does business in this district. Pet. ¶ 29; see ECF
No. 4-2; In re JSC BTA Bank, 577 F. Supp. 3d 262, 266 (S.D.N.Y. 2021). Second, Petitioners
have established that they intend to use the discovery in ongoing Brazilian legal proceedings.
Petitioners have been assigned interests in loan agreements to “companies within the Bioverde

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group and their shareholders” (the “Foreign Defendants”). Pet. ¶¶ 2–3, 6. The Foreign
Defendants “fail[ed] to fulfill their payment obligations” under the credit agreements and
breached them. Pet. ¶¶ 4–5. Petitioners now seek to “uncover potential fraudulent transfers or
other efforts undertaken by . . . members of the Bioverde Group to avoid paying the significant
debt owed to Banco BTG and Travessia by hiding assets outside of the jurisdiction of the
Brazilian [c]ourts,” and have evidence that the Foreign Defendants own significant assets in the
name of Admel Properties. Pet. ¶¶ 12, 32; Pistoresi Decl. ¶¶ 11, 16, 18–20. Under the plain text
of Section 1782, a foreign proceeding includes “a proceeding in a foreign or international
tribunal.” 28 U.S.C. § 1782(a); Mees, 793 F.3d at 299 (“[A]n applicant may seek discovery of
any materials that can be made use of in the foreign proceeding to increase her chances of
success.”). Third, Petitioners are parties to the foreign proceeding. Pet. ¶ 35; Pistoresi Decl.
¶¶ 9–10, 16.
Each of the discretionary factors also weigh in favor of granting the Petition. First,
Respondent is not a participant or party in the Brazilian proceedings, and Petitioners do not
“intend to join Admel Properties as a party.” Pet. ¶ 39; Pistoresi Decl. ¶ 38. Second, Petitioners
provide evidence that they have an “active, ongoing duty to locate the Foreign Defendants’
assets globally and present them before the Brazilian [c]ourts,” Pet. ¶ 41, and there is no
“authoritative proof that a foreign tribunal would reject evidence obtained with the aid of section
1782,” Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d 1095, 1100 (2d Cir. 1995). Third, there is
no evidence that Petitioner is attempting to circumvent any proof-gathering restrictions imposed
by Japanese law or otherwise seeking the discovery in bad faith. Pistoresi Decl. ¶ 40. Finally,
the subpoenas Petitioner proposes are narrowly tailored “to identify and trace potential transfers
and the purchase and disposition of the assets in this [d]istrict belonging to the Foreign

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Defendants,” and are not unduly intrusive or burdensome. Pet. ¶ 47; see ECF No. 4-1.
CONCLUSION
For the reasons stated above, the Petition is GRANTED. The Clerk of Court is directed
to terminate the motion at ECF No. 4 and to close the case.
SO ORDERED.
Dated: July 15, 2024
New York, New York

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