In re: Application of the Republic of Turkey for an Order Under 28 U.S.C. 1782 to Conduct Discovery for Use in Foreign Proceedings
Filing
22
OPINION AND ORDER: The Petitioner's Ex Parte Application is DENIED. Signed by Magistrate Judge Elizabeth Preston Deavers on 2/22/2021. (er)
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
IN RE: APPLICATION OF THE,
REPUBLIC OF TURKEY FOR AN
ORDER UNDER 28 U.S.C. § 1782 TO
CONDUCT DISCOVERY FOR USE IN
FOREIGN PROCEEDINGS,
Civil Action 2:20-mc-36
Chief Judge Algenon L. Marbley
Magistrate Judge Elizabeth A. Deavers
OPINION AND ORDER
This matter is before the Court on an ex parte application seeking leave, pursuant to 28
U.S.C. § 1782 and Federal Rules of Civil Procedure 26 and 45, to serve Respondents1 with
1
According to the ex parte application, subpoenas are directed to the following Respondents: (1)
Horizon Science Academy Cincinnati High School, Inc.; (2) Horizon Educational Services of
Columbus, Inc. d/b/a Horizon Science Academy Columbus High School; (3) Horizon Science
Academy, Inc. d/b/a Horizon Science Academy Columbus Middle School; (4) Horizon Science
Academy Primary d/b/a Horizon Science Academy – Columbus Primary School; (5) Horizon
Science Academy Elementary School, Inc.; (6) Horizon Science Academy – Dayton d/b/a
Horizon Science Academy – Dayton Elementary School ; (7) Horizon Science Academy Dayton
High School, Inc.; (8) Horizon Science Academy Dayton Downtown, Inc.; (9) Noble Academy –
Columbus, Inc.; (10) Figs Café and Bakery LLC; (11) MDN of Dayton LLC; (12) Star
Consultants, Inc.; and (13) Florence Freeman (a.k.a. Florence Gbaya and Florence Prescott).
(ECF No. 1 at 1 n.1.)
Of the thirteen original proposed subpoenas attached to the application, seven are blank. The
remaining six are directed to Figs Café and Bakery LLC, Florence Freeman (a.k.a. Florence
Gbaya and Florence Prescott), Horizon Science Academy Cincinnati High School, Inc., MDN of
Dayton LLC, Noble Academy – Columbus, Inc., and Star Consultants, Inc. (ECF No. 1-1.) Of
the thirteen revised subpoenas attached to Petitioner’s supplemental filing, eight are blank. The
remaining five are directed to Figs Café and Bakery LLC, Florence Freeman (a.k.a. Florence
Gbaya and Florence Prescott), MDN of Dayton LLC, Noble Academy – Columbus, Inc., and
Star Consultants, Inc. (ECF No. 14-2.) The subpoenas request the production of documents.
The following Respondents have opposed the application: (1) Horizon Science Academy
Cincinnati High School, Inc.; (2) Horizon Educational Services of Columbus, Inc. d/b/a Horizon
Science Academy Columbus High School; (3) Horizon Science Academy, Inc. d/b/a Horizon
Science Academy Columbus Middle School; (4) Horizon Science Academy Primary d/b/a
Horizon Science Academy – Columbus Primary School; (5) Horizon Science Academy
Elementary School, Inc.; (6) Horizon Science Academy – Dayton d/b/a Horizon Science
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subpoenas filed by Petitioner, the Republic of Turkey. (ECF No. 1.) Petitioner has filed a
supplemental memorandum in support, including revised subpoenas. (ECF No. 14.) The School
Respondents have filed a Response in Opposition (ECF No. 17), and Petitioner has filed a Reply
(ECF No. 19). On February 2, 2021, the School Respondents filed a Supplemental
Memorandum. (ECF No. 20.) On February 4, 2021, Petitioner filed a response. (ECF No. 21.)
For the following reasons, the ex parte application is DENIED.
I.
According to the application, relief is requested for purposes of obtaining “discovery in
aid of an ongoing criminal investigation being conducted by the Turkish Ministry of Justice in
the Republic of Turkey.”2 (ECF No. 1 at 5.)
The application asserts that “substantial evidence
exists to suggest that Concept Schools (“Concept”) and a host of insiders and affiliated
companies and individuals are engaged in criminal activity in the United States and Turkey.”
(Id.) Further, “Petitioner requires additional evidence of this criminal activity in order to further
its investigation into various violations of Turkish law, including potential money laundering and
Academy – Dayton Elementary School; (7) Horizon Science Academy Dayton High School,
Inc.; (8) Horizon Science Academy Dayton Downtown, Inc.; and (9) Noble Academy–
Columbus, Inc. (collectively the “School Respondents”). (ECF No. 17 at 2 n.1.)
2
Petitioner filed similar applications in the Northern District of Ohio, Case No. 1:20-mc85 (Polster, J.) and the Northern District of Illinois, Case No. 20-5012. See ECF No. 14 at 1 n.1.
On January 29, 2021, in the Northern District of Ohio case, Judge Polster issued an order, stating
in part:
On or before February 12, 2021 respondent must produce any all documents
evidencing the flow of funds between respondent’s schools and the Republic of
Turkey or certify that no such documents exist. Any other discovery sought by
petitioner must be accomplished through a mutual legal assistance treaty
(“MLAT”).
(ECF No. 20-1.)
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fraud offenses through which Respondents are believed to be funneling the proceeds of this
criminal activity from the United States into the Republic of Turkey.” (Id.) To this end,
Petitioner explains that it retained “counsel and a team of former federal prosecutors and
investigators to investigate [] whistleblower allegations and to determine whether funds that were
transmitted into Turkey by companies and individuals affiliated with Concept were derived from
criminal activity that took place or is currently taking place in the United States.” (Id. at 6.)
Accompanying the application is a 38-page unsworn Statement of Facts signed by
counsel setting forth roughly 110 paragraphs of factual allegations detailing Petitioner’s
investigative findings. (ECF No. 1-2.) By way of introduction, the Statement of Facts sets forth
the following:
Concept Schools (“Concept”), its officials, and the 31 charter schools falling under
its umbrella have been long besieged by allegations of corrupt practices. Various
whistleblowers have alleged that Concept (and other similarly organized charter
school management companies throughout the United States) were created to
siphon public, tax-payer funds away from the education of children in order to
finance the international political activities of Fethullah Gulen, an exiled Turkish
cleric residing in the State of Pennsylvania. See U.S. Charter Schools Tied to
Powerful Turkish Imam, CBS News – 60 Minutes (May 13, 2012)
http://www.cbsnews.com/news/uscharterschools-tied-to-powerful-turkishimam/.
According to whistleblowers who have gone public with their concerns, Turkish
ex-patriots who are loyal to Mr. Gulen created Concept and a shadowy web of
insider companies to illicitly divert millions in federal and state education dollars
away from the education of children in order to finance Mr. Gulen’s international
political ambitions. These insider companies provide necessary goods and services
to Concept that include, but are not limited to, construction, classroom supplies and
furniture, real estate, and internet and technology services, among others.
In addition to various fraud schemes, the whistleblowers have publicly alleged that
Concept and the insider companies further their conspiracy by abusing the
immigration system through the sponsorship of large numbers of predominantly
Turkish followers of Gulen for employment-based visas and green cards. The
recipients of these immigration benefits are generally put to work as teachers in
Concept schools or in other positions within insider companies. According to the
whistleblowers, the foreign national teachers lack the training and certification
necessary to educate children but are utilized in the classrooms because of their
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willingness to “kickback” a portion of their salary to various organizations affiliated
with the Gulen Movement—a requirement often referred to as “Tuzuk” (a Turkish
word translating to “bylaw” in English).
In furthering this conspiracy, whistleblowers allege that Concept, its officials, and
other Gulen loyalists are violating a host of federal and state laws, including those
prohibiting securities and wire fraud, tax fraud, money laundering, procurement
fraud, campaign finance laws, and various rules governing charitable organizations.
Petitioner has initiated an investigation within its’ own borders to determine
whether the proceeds derived from these illegal activities in the United States are
being unlawfully transported and transmitted to individuals in Turkey in violation
of Turkish criminal law, including international money laundering and fraud. See
Letter from Hon. Serdar Kilic, Turkish Ambassador to the United States (Aug. 28,
2020), attached hereto as Exhibit 1.
These allegations have not gone entirely unnoticed by United States law
enforcement. In 2014 the U.S. Department of Justice (“DOJ”) revealed that it was
conducting a criminal investigation into Concept when the Federal Bureau of
Investigation (“FBI”) executed search warrants on various Concept schools and
related companies. According to an affidavit filed in support of those warrants, the
focus of the FBI’s investigation was on allegations that Concept was engaged in
fraud and other abuses of the “E-Rate” program, a Federal Communications
Commission (“FCC”) program that provides federal funding to enhance internet
access at schools and libraries. See FBI Search Warrant Affidavit, Case No. 1:14mc-00288 (N.D. Ill. 2014), attached hereto as Exhibit 2. In particular, the FBI
found that Concept School officials were awarding E-Rate funded contracts to
insiders and other suspected Gulen loyalists in violation of federal rules requiring
that such contracts be awarded through a competitive bidding process. Id.
Various media outlets have also published extensive investigative reports, raising
concerns regarding Concept’s operations and describing conduct that suggests
Concept and affiliated companies are engaged in criminal activity. See, e.g.,
Charter Official Made $100,000 on Deal, Chicago Sun-Times (Dec. 23, 2013),
https://www.pressreader.com/usa/chicago-suntimes/20131223/282454231816690.
This reporting also includes troubling allegations that Concept insiders and school
officials have violated a host of federal election laws in order to attempt to influence
the U.S. political system through illicit campaign contributions and influence
campaigns. See, e.g., Ohio Taxpayers Provide Jobs to Turkish Immigrants Through
Charter
Schools,
Beacon
Journal
(July
5,
2014),
https://www.beaconjournal.com/article/20140705/NEWS/307059540.
Concept consistently denies these allegations and publicly maintains that the
schools operate independently under the governance of their local board.
(ECF No. 1-2, at ¶¶ 2-9.)
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Against this backdrop of allegations, Petitioner explains that it retained counsel and a
team of former federal prosecutors and investigators to investigate these whistleblower
allegations and to determine whether funds that were transferred into Turkey by companies and
individuals affiliated with Concept Schools may have been derived from criminal activity in the
United States. (Id. at ¶ 10.)
According to Petitioner, this investigation has validated many of the whistleblower’s
allegations and revealed substantial indicia of criminal activity. (Id.) For example, Petitioner
asserts that the investigation uncovered substantial evidence that schools operating under the
Concept umbrella have secretly and unlawfully awarded millions of dollars in contracts to shell
companies formed by insiders; construction permits and other public records demonstrate that
large construction contracts were awarded to insiders, several of whom appear to have no prior
track record of performing construction work and may not even be licensed as contractors or
engineers; and the awarding of several of these construction contracts to insiders suggests that
Concept’s affiliates may have committed securities fraud. (Id. at ¶¶ 11-13.) Other information
uncovered included alleged abuses of federally funded Child Nutrition Programs contracts;
instances of suspected procurement fraud, including purchases of classroom furniture and
equipment from companies formed by Concept insiders; and millions of dollars wasted through
sham arm’s length real-estate transactions. (Id. at ¶¶ 14-16.) Further, Petitioner asserts that
Concept managed schools frequently pay rent at above market rates to companies controlled
by insiders. (Id. at 17.) According to Petitioner, the Ohio Auditor has expressed serious
concerns about Concept’s governance and potential conflicts of interest. (Id. at 18, Exhibit 3.)
Petitioner also asserts that a review of U.S. Department of Labor records support
allegations that Concept is committing immigration and visa fraud in order to generate illicit
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kickbacks and re-locate Turkish supporters of Gulen into the United States. According to
Petitioner, Concept sponsors far more foreign nationals for teaching positions than does almost
any other school district in the United States, almost all of whom are from Turkey. (Id. at ¶¶ 1921.) Analysis of Ohio teacher pay records suggests that these Turkish teachers, many of whom
lack proper credentials, are required to kickback a portion of their salary to further the Gulen
movement (as required by the “Tuzuk”). (Id. at ¶ 22.) The same insider companies that receive
large contracts from Concept and its related entities are themselves frequently sponsor visas and
permanent residency for foreign nationals and sponsor only Turkish nationals for green cards.
(Id. at ¶ 23.) Finally, Petitioner contends that many of the school executives and insiders who
benefit from Concept contracts have made several large and suspicious campaign contributions
to various public officials. (Id. at ¶ 25.)
Petitioner identifies seventeen individuals or entities, including some of the Respondents,
as relevant to the above allegations. (Id. at ¶¶ 27-43.) Petitioner’s allegations proceed to
describe various instances of “conflicts of interest and corrupt insider dealing, allowing the
organization to secretly siphon funds away from the educational purposes for which they are
intended.” (Id. at ¶ 45.) For example, Petitioner details alleged securities fraud in connection
with alleged improper awards of millions of dollars in municipal bond-financed construction
contracts to companies owned by favored from Concept schools insiders, (Id. at ¶¶ 45-60);
unlawful awards of U.S. Department of Agriculture Child Nutrition Program Contracts to
Companies Affiliated with Concept Officials (Id. ¶¶ 61-64); insider real estate dealings (Id. at ¶¶
65-69); conflicts of interest to enable inflated lease agreements (Id. at ¶¶ 70-73); the award of
contracts to Mr. Cinar’s companies (Id. at 74-79) and immigration fraud. (Id. at ¶¶ 92-100).
Petitioner explains that its findings are corroborated by an investigation undertaken in 2014, by the
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FBI, Department of Education-Office of Inspector General, and FCC Office of Inspector General
into Concept’s use of federal grant dollars granted through the FCC E-Rate program (Id. at 8091.)
Finally, Petitioner alleges Concept and affiliates engaged in specific criminal conduct in
the United States in violation of federal law, including wide-ranging wire fraud and money
laundering, federal programs bribery, theft of federal funds, federal visa fraud, making false
statements, filing a false tax return, obstruction, or witness tampering. (Id. at ¶¶ 106-110.)
Petitioner also alleges violations of state law, including unlawful interest in public contract;
community schools conflict of interests; and money laundering. (Id. at ¶ 111.)
II.
“’Section 1782 provides federal-court assistance in gathering evidence and testimony for
use in foreign tribunals.’” Matter of De Leon, No. 1:19-MC-15, 2020 WL 1180729, at *3 (S.D.
Ohio Mar. 12, 2020), appeal dismissed sub nom. In re De Leon, No. 20-3406, 2020 WL 3969865
(6th Cir. May 26, 2020) (quoting JSC MCC EuroChem v. Chauhan, No. 18-5890, 2018 WL
9650037, at *1 (6th Cir. Sept. 14, 2018)).
Section 1782(a) provides, in relevant part:
The district court of the district 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, including criminal
investigations conducted before formal accusation. The order may be made
pursuant to a letter rogatory issued, or request made, by a foreign or international
tribunal or 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. . . . The order may prescribe the practice and
procedure, which may be in whole or part the practice and procedure of the foreign
country or the international tribunal, for taking the testimony or statement or
producing the document or other thing. To the extent that the order does not
prescribe otherwise, the testimony or statement shall be taken, and the document or
other thing produced, in accordance with the Federal Rules of Civil Procedure.
28 U.S.C. § 1782(a).
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In short, “[a] district court may order discovery under § 1782 if, among other
considerations, at least three prerequisites are met: (1) the person from whom the discovery is
sought “resides or is found” in the district; (2) the discovery sought is ‘for use in a proceeding in
a foreign or international tribunal[;]’ and (3) the application for discovery is made by ‘any
interested person[.]’ 28 U.S.C. § 1782(a).” In re Application for Discovery Pursuant to 28
U.S.C. § 1782, No. 1:19-MC-0102, 2020 WL 364222, at *1 (N.D. Ohio Jan. 22, 2020).
To invoke § 1782, an applicant must meet the statutory requirements set forth in § 1782(a); the
proceeding before the foreign tribunal must be either “reasonably contemplated,” or must
actually be pending; and the district court must determine that the issuance of discovery is proper
under certain discretionary factors (the “Intel factors”). Matter of DeLeon, 2020 WL 1180729, at
*3 (citing Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264 (2004)).
Thus, whether to grant § 1782(a) discovery ultimately is a “discretionary decision” and
“’a district court is not required to grant a § 1782 discovery application simply because it has the
authority to do so.’” In re Application to Obtain Discovery for Use in Foreign Proceedings, 939
F.3d 710, 732 (6th Cir. 2019) (quoting Intel, 542 U.S. at 264). “The Intel factors, which guide
that discretionary decision, require careful consideration of the facts and circumstances of the
case.” Id.
The Intel factors properly are summarized as follows:
(1) whether the person from whom the discovery is sought is a participant in the
foreign proceeding such that the discovery is within the foreign tribunal’s
jurisdictional reach and thus accessible absent [§] 1782 relief; (2) the nature of the
foreign tribunal, the character of the proceedings underway abroad, and the
receptivity of the foreign court to U.S. federal court assistance; (3) whether the [§]
1782 request conceals an attempt to circumvent foreign proof-gathering restrictions
or other policies of the foreign country or the United States; and (4) whether the
subpoena contains unduly intrusive or burdensome requests.
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De Leon, 2020 WL 1180729, at *3. Again, however, whether discovery is appropriate under
these factors ultimately is within the district court’s discretion. Matter of DeLeon, 2020 WL
1180729, at 3 (citing Chauhan, 2018 WL 9650037, at *1).
III.
A. The Statutory Factors
The School Respondents do not challenge Turkey’s status as an interested person under §
1782. Nor do they suggest that they, as the persons from whom discovery is sought, are not
found or do not reside in this District. Rather, their argument here is limited to the second
statutory factor – whether the discovery sought is for use in a proceeding in a foreign or
international tribunal, including criminal investigations conducted before formal accusation. On
this issue, they contend that, because a proceeding before a foreign tribunal is neither
“reasonably contemplated” nor actually pending, Petitioner’s application should be denied. The
Court will begin its analysis with that issue.
“The statute itself and the case law applying it” make clear “that a foreign proceeding
need not be actually pending in order to obtain relief.” financialright GmbH v. Robert Bosch
LLC, 294 F. Supp. 3d 721, 729 (E.D. Mich. 2018) (citing Mees v. Buiter, 793 F.3d 291, 299 (2nd
Cir. 2015)) (emphasis in original). By its plain language, the statute requires only that the
material sought be “’for use in a proceeding[,]” not “for use in pending litigation.’” Id.; 28
U.S.C. § 1782. Such a proceeding, however, must be “within reasonable contemplation.” The
applicant “must have more than a subjective intent to undertake some legal action, and instead
must provide some objective indicium that the action is being contemplated.” Id. (quoting
Certain Funds, Accounts &/or Inv. Vehicles v. KPMG, L.L.P., 798 F.3d 113, 123 (2d Cir. 2015));
see also, Intel, 542 U.S. at 259 (“[W]e hold that § 1782(a) requires only that a dispositive ruling
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... be within reasonable contemplation.”). Stated more colorfully, the application must show
“’[a]t a minimum, some concrete basis from which [the Court] can determine that the
contemplated proceeding is more than just a twinkle in counsel’s eye.’” Id. (quoting Certain
Funds,798 F.3d at 124). Further, “a district court must insist on reliable indications of the
likelihood that proceedings will be instituted within a reasonable time.” Id. An applicant must
provide some objective indicium that the action is being contemplated.” Certain Funds, 798 F.3d
at 123; see also In re Sabag, No. 119MC00084JPHTAB, 2020 WL 4904811, at *3 (S.D. Ind.
Aug. 18, 2020) (vacating grant of application under § 1782 where there was “no objective
indication that a proceeding in a foreign or international tribunal was within reasonable
contemplation” and noting that, “subjective desire, alone, is not enough”).
In support of its application, Petitioner submitted a copy of an unsworn letter from the
Turkish Ambassador to the United States, Serdar Kilic. (ECF No. 1-3.) In this letter, the
Ambassador “confirms that Law Enforcement Authorities of the Republic of Turkey are
conducting various criminal investigations into Fetullah Gulen and his organization for
suspected criminal activity.” (Id.) He explains that “[t]he current focus of one of these
investigations is widespread and includes the suspected laundering of criminal proceeds in
violation of Turkish laws and regulations, including Article 282 of the Criminal Code.” (Id.) He
further explains that, “[s]pecifically, Turkish authorities are investigating a scheme through
which criminally derived funds are being laundered from certain corporations and individuals
throughout the United States, and then returned to Turkey for the continued financing of illicit
activities in violation of Turkish laws. (Id.) Additionally, he states that “the Government of
Turkey has retained U.S.-based counsel, Nixon Peabody LLP, to receive more information about
the criminal activities of these corporations and individuals in the United States” (Id.) Finally,
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he declares optimism “that the assistance of the U.S. judicial system in compelling the
production of information relevant to these investigations will assist in bringing the responsible
parties to justice in Turkey and the United States.” (Id.)
Petitioner also submitted, in connection with its supplemental memorandum, a copy of a
sworn declaration from Gokhan Karakose, the Deputy Chief Public Prosecutor for Ankara.
(ECF No. 14-1.) This declaration, signed on October 2, 2020, was prepared for the Northern
District of Illinois proceeding. According to the declaration, Mr. Karakose’s office is
responsible for investigating violations of the Turkish Criminal Code and initiating prosecutions.
(Id. at ¶ 2.) There are pending investigations regarding several crimes committed by Fetullah
Gulen, a United States resident, and individuals and entities connected with him. (Id. at ¶ 3.)
Some of these investigations are ongoing, some are at the prosecution stage and some
proceedings have resulted in conviction. (Id.) Further, some of the investigations have
examined whether the proceeds of illicit activities taking place in the USA and Turkey have been
transferred, through international wire transfers or other means, to individuals and entities
operating in Turkey or in the USA in violation of the prohibitions on money laundering codified
in Article 282 of the Turkish Penal Code. (Id. at ¶ 4.) Petitioner did not provide a copy Article
2823 of the Turkish Penal Code for the Court’s review, but the Prosecutor explains that it
3
Laundering of Assets Acquired from an Offence
Article 282
(1) (Amended on 26/6/2009 - By Article 5 of the Law no. 5918) Where a person conducts any
act in relation to an asset, which has been acquired as a result of an offence which carries a
minimum penalty of six months imprisonment, in order to transfer such asset abroad or to give
the impression that such asset has been legitimately acquired and conceal the illegitimate source
of such, shall be subject to a penalty of imprisonment for a term of three to seven years and a
judicial fine of up to twenty thousand days.
(2) (Added on 26/6/2009 - By Article 5 of the Law no. 5918) Any person who, without
participation in commission of the offence set out in the above-mentioned paragraph, purchases,
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“prohibits the transferring of assets acquired from a criminal offense in a manner designed to
conceal the illicit source of such proceeds or in a manner designed to give the impression that
such assets have been legitimately acquired.” (Id. at ¶ 5.) Further, he explains that the testimony
and documents sought “will significantly and materially advance [the] ongoing criminal
investigation into the … violations of Turkish law.” (Id. at ¶ 6.)
In Petitioner’s view, these documents demonstrate that the requested discovery is material
and necessary to further ongoing criminal investigations. Further, Petitioner contends that the fact
the requests for information have come directly from two senior Turkish government officials is
significant and worthy of deference.
To the contrary, Respondents contend that neither of these documents suffice for
purposes of § 1782. According to Respondents, the documents do not provide a basis to
determine that a legitimate criminal investigation exists for several reasons. First, Respondents
assert that the documents do not mention them, or anyone affiliated with the Academies.
Second, Respondents claim that the documents do not suggest with certainty that criminal
charges will be brought. On this point, Respondents explain that the documents do not indicate
accepts, keeps or uses this asset by being aware of its value and such nature shall be subject to a
penalty of imprisonment for a term of two to five years.
(3) Where this offence is committed by a public officer or professional person in the course of
his duty then the penalty to be imposed shall be increased one half.
(4) Where this offence is conducted in the course of the activities of an organisation established
for the purpose of committing an offence, the penalty to be imposed shall be doubled.
(5) Where a legal entity is involved in the commission of this offence it shall be subject to
security measures specific to the legal entities
(6) In relation to the offences defined in this article, no penalty shall be imposed upon a person
who directly enables the securing of assets, or who facilitates the securing of such assets, by
informing the relevant authorities of the location of such before the commencement of a
prosecution.
Venice Commission’s 2016 translation,
https://www.mevzuat.gov.tr/MevzuatMetin/1.5.5237.pdf
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against whom charges will be brought, what the charges will be or when the alleged conduct
occurred. Third, Respondents assert that the lack of specificity “reeks of subterfuge.” In short,
in Respondents’ view, the information set forth in these documents does not reflect that a
legitimate investigation was intended in Turkey.
As noted, whether the Application satisfies the second statutory requirement turns on
whether Turkey’s purpose in seeking discovery here is, as represented, for use in a Turkish
criminal investigation or proceedings. Frankly, the evidence submitted by Petitioner on this
issue is not particularly detailed. In contrast to the comprehensive narrative provided by counsel,
the Deputy Chief Public Prosecutor’s declaration provides what can only be described as the
most minimal information. (ECF No. 1-2.) Given that, according to his declaration, his office
investigates violations of Turkish law and initiates prosecutions, (ECF 14-1 at 2), more detail and
specifics would be expected.
These bare minimum assertions seem to distinguish the situation here from those where
courts have found sufficient indicia of a contemplated proceeding. See, e.g., Application of
Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 747 F.3d
1262, 1271 (11th Cir. 2014) (finding statutory requirements met in light of applicant’s “facially
legitimate and detailed explanation of its ongoing investigation, its intent to commence a civil
action against its former employees, and the valid reasons for [applicant] to obtain the requested
discovery under the instant section 1782 application before commencing suit.”). Instead, they
seem more in line with cases where courts have found sufficient indicia lacking. See, e.g.,
Mangouras v. Squire Patton Boggs, 980 F.3d 88, 101 (2d Cir. 2020) (finding that applicant’s
submissions did not present a legal theory supporting a proceeding or clearly lay out the content
of his claims and characterizing counsel’s representations of criminal claims as “at best
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speculative” and “tentative”); In re Application of Gov't of Lao People's Democratic Republic v.
For an Order Pursuant to the United Nations Convention Against Corruption, No. 1:15-MC00018, 2016 WL 1389764, at *7 (D. N. Mar. I. Apr. 7, 2016) (finding that applicant could not
show that a dispositive ruling was within reasonable contemplation where letter from Ministry of
Justice did not mention when a dispositive ruling or even a decision to prosecute would be made
and uncertainty in the criminal investigation failed to show how any dispositive motion could be
within reasonable contemplation); Certain Funds, 798 F.3d at 124 (concluding that, where all
that was alleged before the district court was that counsel had been retained and the possibility of
initiating litigation was being discussed, little had been done to make an objective showing that
the planned proceedings were within reasonable contemplation).
Petitioner’s argument that these documents are worthy of significant deference here
simply because they were made by high ranking governmental officials is not particularly
persuasive. Vague and conclusory statements lacking in specificity are not worthy of elevated
status simply because they are offered by such officials. At most, the takeaway from Petitioner’s
evidentiary submissions, standing on their own, is that a prosecution of some unidentified
individual or entity (possibly Gulen; possibly others) for money laundering, in violation of
Article 282 of the Turkish Penal Code, may be contemplated.
On the other hand, the Court acknowledges the depth of the investigation undertaken on
Turkey’s behalf as detailed in Petitioner’s application and the information which it reveals. That
information arguably fills in some of the details the government officials’ submissions are
lacking. Reading the government officials’ statements in conjunction with counsel’s statement
of facts provides a more robust picture of the reasonable likelihood of proceedings. Moreover,
while Respondents emphasize the suspect nature of Petitioner’s true intentions here, they have
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put forth no evidence on that point. The Court will not accept Respondent’s allegations of
questionable motives on Turkey’s part, based on nothing more than the argument of counsel, in
considering the statutory factors of 28 U.S.C. § 1782.
Instead, under these circumstances, in considering Turkey’s application, the Court will
assume, without deciding, that the second statutory requirement is met and will turn to the
discretionary Intel factors.
B. Discretionary factors under Intel
1.
The First Intel factor
The first factor considers whether “the person from whom discovery is sought is a
participant in the foreign proceeding.” Intel, 542 U.S. at 264. If so, “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” because “[a] foreign tribunal has jurisdiction over those appearing
before it, and can itself order them to produce evidence.” Id. “In contrast, nonparticipants in the
foreign proceeding may be outside the foreign tribunal’s jurisdictional reach; hence, their
evidence, available in the United States, may be unobtainable absent § 1782(a) aid.” Id.
Petitioner asserts that the Respondents to this application are all nonparties located outside
the jurisdictional reach of Turkish courts. (ECF No. 1 at 12.) Respondents do not challenge or
address this Intel factor to any meaningful degree. Accordingly, this factor supports the Court’s
exercise of discretion to grant the Application.
2. The Second Intel Factor
Under the second factor the Court is asked to examine “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.
Petitioner asserts that this factor supports granting the application because “this very petition
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arises from the Turkish government seeking the assistance of U.S. courts in furthering an
important, ongoing criminal investigation in Turkey.” (ECF No. 1 at 11.) Respondents also do
not dispute this or contend that this factor supports denying discovery. Accordingly, this factor
also supports the Court’s exercise of discretion to grant the Application.
3. The Third Intel Factor
With respect to the third factor, the Court considers “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.” Intel Corp., 542 U.S. at 265. Although not neatly framed
as such, Respondents focus very heavily on this factor, arguing at some length that what they
consider to be Turkey’s obvious and well-documented motives here strongly disfavor granting
the § 1782 application. Further, they contend that Petitioner’s failure to proceed under the more
typically used procedure involving a Mutual Legal Assistance Treaty (“MLAT”), where a
foreign government seeking evidence in the United States first requests assistance from U.S.
prosecutors, is also suspect. According to Respondents, once an MLAT request has been
received and evaluated by the U.S. government, the relevant U.S. Attorney’s Office or the
Department of Justice will generally file an application with the appropriate court on behalf of
the foreign government to obtain the requested evidence. They have submitted as supplemental
authority on this issue Federal Republic of Nigeria v. VR Advisory Services, Ltd., -- F. Supp.3d--,
No. 20 MISC. 209 (PAE), 2020 WL 6547902, at *7–8 (S.D.N.Y. Nov. 6, 2020).4 (ECF No. 18.)
Petitioner asserts to the contrary that it may proceed under § 1782 regardless of the
existence of an available MLAT procedure. Petitioner dismisses the decision in Federal
Republic of Nigeria as readily distinguishable and “deeply flawed.” (ECF No. 19 at 12, 13.)
4
This case is currently on appeal to the Second Circuit Court of Appeals.
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Petitioner argues that when Congress passed what is now codified as 18 U.S.C. § 3512, and
generally recognized as a more efficient vehicle through which U.S. Attorneys could facilitate
discovery requests from foreign governments, it specifically did not foreclose a foreign
government’s ability to obtain assistance in a criminal investigation or prosecution pursuant to §
1782. See 18 U.S.C. § 3512(g). According to Petitioner, there is “no room to doubt that foreign
governments may submit discovery requests either through the U.S. Department of Justice or to
U.S. courts directly.” (ECF No, 19 at 14.)
The parties acknowledge that the United States and Turkey have an MLAT. See Treaty
Signed at Ankara June 7, 1979; T.I.A.S. No. 9891 (1981). Accordingly, the Court will begin its
analysis with a consideration of its significance here.
Under the Treaty, each of the Contracting Parties may submit to the other Party requests
for assistance in criminal matters. Id. Ch. 2, Sec. 1, Art. 20. Criminal matters for which mutual
assistance shall be afforded include “investigations and criminal proceedings in respect of
offenses, the punishment of which falls or would fall within the jurisdiction of the judicial
authorities of the Requesting Party under its law.” Id. Art, 21, §2. Mutual assistance includes
“effecting the production, preservation and authentication of documents, records, or articles of
evidence.” Id. Art. 21 § 3(c). The scope of use “is limited to the purposes of investigations or
criminal proceedings and adjudications of claims for damages connected with the offense which
is the subject of the investigation or proceedings in the Requesting Party.” Id. Art. 23. The
Competent Authorities under this chapter of the Treaty, charged with making and transmitting
requests, are the United States of America Department of Justice and the Ministry of Justice of
the Republic of Turkey. Id. Sec 5, Art. 38 (1). If the Requested Party determines that the request
for assistance is not consistent with the provisions of this Chapter or that it cannot be executed,
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that Party shall immediately inform the Requesting Party and specify the reasons. Id. Art. 39.
Judicial assistance may be refused under certain circumstances, including if the investigation or
proceedings concerns an offense which the Requested Party considers to be a political offense or
an offense connected with a political offense; or if the Requested Party considers that execution
of the request is likely to prejudice its sovereignty, security, or similar essential interests. Id.
Sec. 1, Art. 22. 1(a)i; 1(b). Further, there are limits as to the types of criminal matters for which
the Parties will authorize discovery. Id. Appendix.
Under the typical MLAT review process, when a discovery request to the United States is
approved, it is the U.S. Department of Justice (“DOJ”) that asks a federal district court to issue
the subpoenas. See 18 U.S.C. § 3512(a)(1) (authorizing federal courts to issue orders to execute
requests from a foreign authority “[u]pon application, duly authorized by an appropriate official
of the Department of Justice”). Fed. Republic of Nigeria, 2020 WL 6547902, at *8. The unusual
nature of Petitioner’s choice here was addressed by the court in Federal Republic of Nigeria:
In the ordinary course, a foreign sovereign seeking evidence in the United States
for use in a foreign criminal investigation or prosecution proceeds under the Mutual
Legal Assistance Treaty (“MLAT”) among it and the United States. It is irregular
for a foreign sovereign seeking criminal-case discovery within the United States to
bypass an MLAT mechanism in favor of a direct application to a federal court. A §
1782 application in this posture is so unusual that Applicants—even after
Respondents noted the unusual nature of this application—were unable to identify
any instance in which another foreign sovereign, having forwent the processes for
obtaining U.S. discovery set forth in the MLAT, successfully obtained criminal
discovery under § 1782.
To be sure, there is no principle of law compelling a foreign nation seeking
evidence in this country for use in a criminal case to proceed first via an MLAT.
But there are sound reasons for generally channeling such discovery applications
through the MLAT process. Doing so promotes comity and consistent outcomes as
to such requests, adds protection for the domestic entities from whom discovery is
sought by foreign prosecutors and criminal investigators, and assures that the U.S.
government’s expertise and analytic rigor is applied to the application, including to
assure that the discovery is not sought for ulterior (non-prosecutive) ends. See, e.g.,
Peter Swire & Justin D. Hemmings, Mutual Legal Assistance in an Era of
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Globalized Communications: The Analogy to the Visa Waiver Program, 71 N.Y.U.
Ann. Surv. Am. L. 687, 699 (2017) (explaining that, under MLATs, the U.S.
government must “review[ ] the request and deem[ ] it appropriate” before filing a
discovery request with the federal district court).
Id. at 7-8; see also In re Request from United Kingdom Pursuant to Treaty Between Gov't of U.S.
& Gov't of United Kingdom on Mut. Assistance in Criminal Matters in the Matter of Dolours
Price, 685 F.3d 1, 11 (1st Cir. 2012) (the U.S., acting on behalf of the UK pursuant to an MLAT,
executed the requests at issue under 18 U.S.C. § 3512.)
Petitioner offers two reasons as explanation for its choice not to proceed pursuant to the
U.S. - Turkey MLAT. First, the Turkish Prosecutor explains that the MLAT process is
cumbersome with inherent delays. Further, as previously noted, Petitioner explains that it was
not required to undertake the process set forth in 18 U.S.C. § 3512 because the plain language of
that statute explicitly does not foreclose proceeding under 28 U.S.C. § 1782.
With respect to its first stated reason, Petitioner does not explain why time is of particular
concern here. Nor does the Prosecutor’s declaration shed any light on this issue, instead offering
only that investigations are in different stages. Moreover, the Application indicates that certain
alleged illicit activities date back several years. Yet Petitioner offers no insight into why time is
now a central consideration. Similarly, Petitioner fails to explain what it finds particularly
cumbersome about the MLAT process, other than the potential for delay. Absent a more
fulsome explanation of these concerns, the Court is not persuaded. See Fed. Republic of
Nigeria, 2020 WL 6547902, at *9. (“Applicants’ preference for speed would justify a foreign
sovereign’s end-running the MLAT process potentially in every case.”)
With respect to its second stated reason, certainly, as Petitioner contends, and as
explained by the court in Federal Republic of Nigeria, 2020 WL 6547902, Petitioner is not
required by law to proceed through the MLAT process. Given the nature and scope of the
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allegations here, however, it is not clear why Petitioner would choose not to do so. That is,
Petitioner details a scenario that seems particularly well-suited to the MLAT-review process and
its goals of promoting comity and consistency. Under that process, in cases in which the request
seeks the production of documents or things that may be located in multiple districts, an
application may be filed in any one of the districts in which such a person, documents, or things
may be located under 18 U.S.C. § 3152 (c)(2). Dolours Price, 685 F.3d at 11 (§ “3512 provides
for a more streamlined process than under § 1782 for executing requests from foreign
governments related to the prosecution of criminal offenses.”). As explained by the court in
Dolours Price,
Section 1782 effectively requires the Attorney General as Central Authority to
respond to requests for evidence from foreign governments by filing requests with
the district court in every district in which evidence or a witness may be found. See
155 Cong. Rec. S6810 (daily ed. June 18, 2009) (letter from Acting Assistant Att'y
Gen. Burton to Sen. Whitehouse). In practice this requires involving multiple U.S.
Attorneys’ Offices and district courts in a single case. Id. Section 3512, on the
other hand, permits a single Assistant United States Attorney to pursue requests in
multiple judicial districts, see 18 U.S.C. § 3512(a)(1); 155 Cong. Rec. S6809 (daily
ed. June 18, 2009) (statement of Sen. Whitehouse), and allows individual district
court judges to oversee and approve subpoenas and other orders (but not search
warrants) in districts other than their own, see 18 U.S.C. § 3512(f).
Id. at 10–11. Rather than obtain the benefit of this streamlined process, however, Petitioner chose
to pursue requests in three different districts risking inconsistent rulings and differing time
schedules.
Moreover, as the above discussion suggests, foreign governments choosing to proceed
under § 1782 often seek assistance from the U.S., either pursuant to an MLAT or otherwise.
For example, In re Premises Located at 840 140th Ave. NE, Bellevue, Wash., 634 F.3d 557, 564
(9th Cir. 2011) the Russian government requested legal assistance from the United States
pursuant to the US–Russia MLAT and the “United States government petitioned the court
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‘pursuant to Article 7 of the [MLAT], 28 U.S.C. § 1782, and the Court's own inherent authority’
to appoint two named co-commissioners ‘to collect evidence from witnesses ….’” Notably, in
that case, the Ninth Circuit Court of Appeals went on to hold that “requests for assistance via the
US–Russia MLAT utilize the procedural mechanisms of § 1782 without importing the
substantive limitations of § 1782.” Id. at 571. On the other hand, in In re Letter of Request from
Crown Prosecution Service of United Kingdom, 870 F.2d 686, 687 (D.C. Cir. 1989), despite no
discussion of an MLAT, the United States brought an application under 28 U.S.C. § 1782 to
obtain evidence sought by the Crown Prosecution Service of the United Kingdom. Similarly, In
re Letters Rogatory from Tokyo District Prosecutor’s Office, Tokyo, Japan, 16 F.3d 1016, 1018
(9th Cir. 1994), although there is no mention of an MLAT, the Tokyo District Prosecutor’s
Office requested assistance and the United States Attorney’s Office applied for an order pursuant
to 28 U.S.C. § 1782.
Significantly, cases cited by Petitioner in support of its ability, as a foreign sovereign, to
proceed directly pursuant to § 1782 make no mention of an operative MLAT. See Islamic
Republic of Pakistan v. Arnold & Porter Kaye Scholer LLP, No. MC 18-103 (RMC), 2019 WL
1559433, at *9 (D.D.C. Apr. 10, 2019) (denying in part and granting part, Pakistan’s Application
for an Order Permitting Discovery Pursuant to 28 U.S.C. § 1782); In re Request for Assistance
from Ministry of Legal Affairs of Trinidad & Tobago, 848 F.2d 1151, 1156 (11th Cir. 1988),
abrogated by Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) (affirming
district court’s conclusion that a proceeding was probable upon application by the Attorney
General and Minister of Legal Affairs in Trinidad and Tobago pursuant to § 1782); In re
Application of Gov't of Lao, 2016 WL 1389764, at *3 (Government of Lao filed an application
pursuant to 28 U.S.C. § 1782 and court specifically noted that no MLAT existed between GOL
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and the United States). As a result, they serve as little support for Petitioner’s stated desire to
bypass the MLAT process.
Beyond the MLAT issue, Respondents also assert illegitimacy and bad faith as grounds
for denying the Application. Petitioner disputes that such considerations are applicable under
either the statutory or discretionary analysis. In the Court’s view, however, Respondents’
assertions are addressed to the issue of circumvention relevant to this factor. Accordingly, the
Court, is “at liberty to consider that circumvention in assessing whether, in its discretion, to
authorize discovery in aid of [Turkey’s] criminal proceedings without the benefit of DOJ’s
review.” Fed. Republic of Nigeria, 2020 WL 6547902, at *9.
Petitioner maintains that there is nothing suspect about its choice to pursue relief under §
1782, rather than through the “lengthy” MLAT process and that it should not be criticized for
exercising a legal right. (ECF No. 19 at 12.) But, its weak justification for circumventing the
MLAT process, cannot go unnoticed, especially where that process seems tailor-made for the
circumstances Petitioner identifies. By way of observation only, because the current record
supports nothing more, the Court offers the following. As Petitioner distills it, “evidence of
criminal activity occurring within the United States is directly relevant to Petitioner’s criminal
investigation.” (ECF No, 19 at 15.) (emphasis in original). Accordingly, it is difficult to
understand how U.S. policies could not in some way be implicated here. Moreover, it seems that
the confirmation of violations of U.S. law that could come via the involvement of U.S.
authorities could only serve to bolster Petitioner’s stated need for proof of illicit activity.
Accordingly, it seems disingenuous at best for Petitioner to expect that it can file an application
alleging a host of serious federal crimes including securities fraud, immigration fraud, violations
of federal election laws, and illicit campaign contributions designed to influence the U.S.
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election system, and expect that it will not be required to offer a reason for bypassing the MLAT
process, and the attendant DOJ review, beyond unadorned concerns regarding time and
cumbersomeness. Stated more succinctly, Petitioner’s negligibly supported Application seems to
raise more questions than it answers.
In sum, Petitioner has offered nothing to convince the Court that the MLAT review
procedure would not benefit its quest for the information it seeks. Its stated reasons fail to align
with its acknowledgment of the more streamlined processes such a review would permit.
Further, the Court reiterates, as noted above, that the circumstances described in the application
present a most compelling need for comity and consistency. Taking all of this into account, and
keeping in mind that this factor considers 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, Turkey simply has not set forth a reasonable justification for choosing to bypass
the MLAT-review procedure under the circumstances here. Accordingly, the third Intel factor
very substantially supports the Court’s exercise of its discretion to deny Petitioner’s § 1782
application.
4. The Fourth Intel Factor
Turning to the final Intel factor, the Court considers whether the discovery sought is
“unduly intrusive or burdensome.” Intel, 542 U.S at 265. Respondents also focus on this factor
at some length arguing that the requests are not narrowly tailored and are overly broad. They
further characterize Petitioner’s application as “a widespread fishing expedition that would result
in significant burdens and costs to the publicly funded Academies.” Respondents, however,
provide no explanation of the significant burden or costs. For its part, Petitioner argues that it
has pared down its requests and that many of the Respondents would already be required to
produce much of the information under the Ohio Public Records Act, 1 Ohio Rev. Code §
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149.43. Petitioner also suggests that no undue burden exists here because Respondents are not
being asked to travel internationally. (ECF No. 1 at 13.)
“Generally speaking, the standards for discovery set out in the Federal Rules of Civil
Procedure also apply when discovery is sought under § 1782(a).” In re Application for
Discovery Pursuant to 28 U.S.C. § 1782, 2020 WL 364222, at *5. (citations omitted).
Consequently, contrary to Petitioner’s assertion, the fact that Respondents are not being asked to
travel internationally is not of particular significance here. Applying general discovery
standards, as explained below the subpoenas are not narrowly tailored as to scope or content.
(ECF No. 14-2.) In fact, this is so to the point that it merits little discussion.
A brief overview of the proposed discovery reveals requests spanning five-year periods
and, in some instances, ten-year periods. (ECF 14-2 at 40; 60 at ¶ 4.) Many of the requests are
prefaced by words such as “including” or “including but not limited to,” suggesting that they
should be read more broadly. (Id. at 59.) Other requests, by way of example, are prefaced by the
word “all,” seeking things such as “contracts, subcontracts, bids, requests for proposals, invoices,
services agreements, e-mails, and payment records, reflecting the contemplated and actual scope
of work, or the specific goods provided in exchange for the payment.” (Id.) These requests are
overly broad and would be unduly burdensome, particularly in light of the acknowledged nonparty status of the Respondents and the length of time covered by the requests. financialright
GmbH v. Robert Bosch LLC, 294 F. Supp. 3d at 739–40 (finding similar requests overly broad
and denying § 1782 application).
For these reasons, the fourth Intel factor weighs against granting the Application. Given
the sheer number and format of the subpoenas, the Court is not inclined to “trim” the requests to
something more reasonable, a task that would require substantial effort. financialright GmbH,
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294 F. Supp. 3d at 739–40 (similarly declining to do so where trimming the 25 document
requests at issue to something more reasonable would require significant effort). Moreover, the
Court will not do so here because it finds that the discretionary factors, taken together, warrant
denial of the request for § 1782 relief. Finally, the Court notes that, by Petitioner’s own
admission, much of the information sought here would be available through a public records
request. Further, as discussed above, Petitioner is not prejudiced because the MLAT process
remains available as a mechanism to aid in obtaining the information it seeks.
IV.
For the foregoing reasons, Petitioner’s Application (ECF No. 1) is DENIED.5
IT IS SO ORDERED.
Date: February 22, 2021
/s/ Elizabeth A. Preston Deavers_________
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE
5
Petitioner suggests that the Court should issue subpoenas to parties who did not object
to the Application. (ECF No. 19 at 1 n.1.) This Opinion and Order denies Petitioner’s
Application in its entirety and the Court, therefore, finds no merit to this argument.
25
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