United States of America v In Re International Judicial Assistance in Myriam Alejandra Burda et al v Despegar.com.AR

Filing 2

ORDER APPOINTING COMMISSIONER UNDER 28 U.S.C. § 1782, signed by Judge Lauren King. (certified copy forwarded to AUSA) (RE)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 11 12 13 14 15 In re: International Judicial Assistance in: CASE NO. 2:23-mc-00081-LK MYRIAM ALEJANDRA BURDA et al., ORDER APPOINTING COMISSIONER UNDER 28 U.S.C. § 1782 v. Plaintiffs, DESPEGAR.COM.AR, Defendant. 16 17 This matter comes before the Court on the United States’ ex parte Motion for Appointment 18 of Commissioner Pursuant to 28 U.S.C. § 1782. Dkt. No. 1. The United States moves on behalf of 19 the First Instance Court in Commercial Matters No. 5, Clerk Office No. 9 in charge of Pablo Omar 20 Almide, Clerk, in and for the city of Buenos Aires, Argentina (“First Instance Court”), seeking 21 information from Expedia for use in a judicial proceeding in Argentina. Id. at 1–3; Dkt. No. 1-2 22 (Letter of Request). For the reasons discussed herein, the Court grants the United States’ motion. 23 24 ORDER APPOINTING COMISSIONER UNDER 28 U.S.C. § 1782 - 1 I. 1 BACKGROUND 2 Judge Maria Soledad Casazza, sitting in the First Instance Court, is currently adjudicating 3 an action captioned Burda, Myriam Alejandra et al. v. Despegar.com.ar SA. Dkt. No. 1-2 at 4, 6– 4 8. To help resolve this dispute, Judge Casazza seeks disclosure of information and supporting 5 documentation from Expedia regarding: (1) whether in September 2019, Despegar made 6 reservation No. 157751101300 – Access Code No. 8076831105284 – at the Best Western 7 International Drive Hotel, for the period of March 13, 2020 through March 24, 2020; 2) whether 8 Expedia received the sums of money paid for such reservation, whether those amounts were 9 transferred to the hotel, and if so, the amounts received and payment dates; 3) what happened with 10 the above mentioned reservation under the name of Sanchiz Piergiacomi as a result of the Covid- 11 19 Pandemic, whether the reimbursement of the amounts paid were authorized, and the reasons 12 why; and 4) whether Despegar carried out any dealings regarding this matter and details of the 13 same. Id. at 6. Judge Casazza also asks that Expedia verify the authenticity of emails accompanying 14 her request as “Annex IV,” Dkt. No. 1-2 at 7, 15, but no such attachment has been received by this 15 Court. Expedia is headquartered in Seattle, Washington. Dkt. No. 1-4 at 2. 16 The United States represents that Judge Casazza’s request was transmitted to the U.S. 17 Department of Justice, Civil Division, Office of International Judicial Assistance (“OIJA”) on 18 September 20, 2023, pursuant to the Hague Evidence Convention and 28 C.F.R. § 0.49(a). Dkt. 19 No. 1 at 3. The OIJA then transmitted the Letter of Request to the U.S. Attorney’s Office for the 20 Western District of Washington on October 27, 2023, for execution in accordance with 28 C.F.R. 21 § 0.49(c). Id.; Dkt. No. 1-1 at 1. 22 II. LEGAL STANDARD 23 Section 1782(a) permits federal district courts to assist in gathering evidence for use in 24 foreign proceedings. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 247 (2004). The ORDER APPOINTING COMISSIONER UNDER 28 U.S.C. § 1782 - 2 1 statute specifically authorizes a district court to order a person residing or found within the district 2 “to give his testimony or statement or to produce a document or other thing for use in a proceeding 3 in a foreign or international tribunal[.]” 28 U.S.C. § 1782(a). The statute may be invoked where: 4 (1) the discovery is sought from a person residing in the district of the court to which the 5 application is made; (2) the discovery is for use in a proceeding before a foreign tribunal; and 6 (3) the applicant is a foreign or international tribunal or an “interested person.” Intel Corp., 542 7 U.S. at 246; Khrapunov v. Prosyankin, 931 F.3d 922, 925 (9th Cir. 2019). 8 In addition to the mandatory statutory requirements, the district court retains discretion in 9 determining whether to grant an application under Section 1782(a) and may impose conditions it 10 deems desirable. Intel Corp., 542 U.S. at 260–61. In Intel, the Supreme Court created a non- 11 exhaustive list of factors to consider in ruling on a Section 1782(a) request, including (1) whether 12 the person from whom discovery is sought is a participant in the foreign proceeding; (2) the nature 13 of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of 14 the foreign government or the court or agency abroad to U.S. federal-court judicial assistance; 15 (3) whether the Section 1782(a) request conceals an attempt to circumvent foreign proof-gathering 16 restrictions or other policies of a foreign country or the United States; and (4) whether the request 17 is unduly intrusive or burdensome. Id. at 264–65. III. DISCUSSION 18 19 A. Statutory Factors 20 The United States has satisfied the three statutory criteria under Section 1782. First, the 21 discovery is sought from Expedia, which is headquartered and has its principal place of business 22 in Seattle, Washington. Dkt. No. 1-4 at 2. Second, the discovery is for use in a proceeding in a 23 foreign tribunal, the First Instance Court in Buenos Aires, Argentina. Dkt. No. 1-2 at 6–8. And 24 third, the applicant for the discovery is the aforementioned tribunal. Id. ORDER APPOINTING COMISSIONER UNDER 28 U.S.C. § 1782 - 3 1 B. Discretionary Intel Factors 2 At this stage, the Court also finds that the discretionary Intel factors weigh in favor of 3 granting this request. First, Expedia is not a participant in the foreign proceedings underway in 4 Argentina and it is not apparent that the First Instance Court could obtain the requested information 5 from Expedia absent this Court’s assistance. Second, as the United States points out, the fact that 6 an Argentinian tribunal made the instant request suggests that it is receptive to the assistance. See 7 Dkt. No. 1 at 7. For the same reason, the third Intel factor related to the potential circumvention of 8 a foreign tribunal’s discovery rules or other policies is not present here. See, e.g., In re Request for 9 Jud. Assistance from the Dist. Ct. in Svitavy, Czech Republic, 748 F. Supp. 2d 522, 529 (E.D. Va. 10 2010) (“[T]he fact that the request was initiated by the Svitavy Court itself, rather than a private 11 litigant, provides sufficient assurance that the request does not attempt to circumvent Czech 12 discovery rules or Czech policy.”). 13 And last, the Court finds that the subpoena request is sufficiently tailored and not unduly 14 intrusive or burdensome. See, e.g., In re Omori, No. 5:23-MC-80195-EJD, 2023 WL 5957172, at 15 *4 (N.D. Cal. Sept. 12, 2023). IV. CONCLUSION 16 17 For the foregoing reasons, it is ORDERED that under the authority contained in 28 U.S.C. 18 § 1782, Nickolas Bohl, Assistant United States Attorney for the Western District of Washington, 19 is hereby appointed as Commissioner to take such steps as are necessary to obtain information 20 from Expedia in conformity with the legally permissible portions of the Letter of Request, Dkt. 21 No. 1-2, to certify the information provided by Expedia in response thereto, to submit such answers 22 to the United States Attorney for the Western District of Washington for transmission to the Office 23 // 24 // ORDER APPOINTING COMISSIONER UNDER 28 U.S.C. § 1782 - 4 1 of International Judicial Assistance, United States Department of Justice, and to do all else that 2 may be necessary for the accomplishment of the purpose of this Order. 3 4 5 6 7 Dated this 13th day of November, 2023. A Lauren King United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER APPOINTING COMISSIONER UNDER 28 U.S.C. § 1782 - 5

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