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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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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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.

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This matter comes before the Court on the United States’ ex parte Motion for Appointment

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of Commissioner Pursuant to 28 U.S.C. § 1782. Dkt. No. 1. The United States moves on behalf of

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the First Instance Court in Commercial Matters No. 5, Clerk Office No. 9 in charge of Pablo Omar

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Almide, Clerk, in and for the city of Buenos Aires, Argentina (“First Instance Court”), seeking

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information from Expedia for use in a judicial proceeding in Argentina. Id. at 1–3; Dkt. No. 1-2

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(Letter of Request). For the reasons discussed herein, the Court grants the United States’ motion.

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ORDER APPOINTING COMISSIONER UNDER 28 U.S.C. § 1782 - 1

I.

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BACKGROUND

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Judge Maria Soledad Casazza, sitting in the First Instance Court, is currently adjudicating

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an action captioned Burda, Myriam Alejandra et al. v. Despegar.com.ar SA. Dkt. No. 1-2 at 4, 6–

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8. To help resolve this dispute, Judge Casazza seeks disclosure of information and supporting

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documentation from Expedia regarding: (1) whether in September 2019, Despegar made

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reservation No. 157751101300 – Access Code No. 8076831105284 – at the Best Western

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International Drive Hotel, for the period of March 13, 2020 through March 24, 2020; 2) whether

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Expedia received the sums of money paid for such reservation, whether those amounts were

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transferred to the hotel, and if so, the amounts received and payment dates; 3) what happened with

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the above mentioned reservation under the name of Sanchiz Piergiacomi as a result of the Covid-

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why; and 4) whether Despegar carried out any dealings regarding this matter and details of the

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same. Id. at 6. Judge Casazza also asks that Expedia verify the authenticity of emails accompanying

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her request as “Annex IV,” Dkt. No. 1-2 at 7, 15, but no such attachment has been received by this

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Court. Expedia is headquartered in Seattle, Washington. Dkt. No. 1-4 at 2.

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The United States represents that Judge Casazza’s request was transmitted to the U.S.

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Department of Justice, Civil Division, Office of International Judicial Assistance (“OIJA”) on

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September 20, 2023, pursuant to the Hague Evidence Convention and 28 C.F.R. § 0.49(a). Dkt.

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No. 1 at 3. The OIJA then transmitted the Letter of Request to the U.S. Attorney’s Office for the

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Western District of Washington on October 27, 2023, for execution in accordance with 28 C.F.R.

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§ 0.49(c). Id.; Dkt. No. 1-1 at 1.

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II. LEGAL STANDARD

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Section 1782(a) permits federal district courts to assist in gathering evidence for use in

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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

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statute specifically authorizes a district court to order a person residing or found within the district

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“to give his testimony or statement or to produce a document or other thing for use in a proceeding

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in a foreign or international tribunal[.]” 28 U.S.C. § 1782(a). The statute may be invoked where:

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(1) the discovery is sought from a person residing in the district of the court to which the

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application is made; (2) the discovery is for use in a proceeding before a foreign tribunal; and

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(3) the applicant is a foreign or international tribunal or an “interested person.” Intel Corp., 542

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U.S. at 246; Khrapunov v. Prosyankin, 931 F.3d 922, 925 (9th Cir. 2019).

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In addition to the mandatory statutory requirements, the district court retains discretion in

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determining whether to grant an application under Section 1782(a) and may impose conditions it

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deems desirable. Intel Corp., 542 U.S. at 260–61. In Intel, the Supreme Court created a non-

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exhaustive list of factors to consider in ruling on a Section 1782(a) request, including (1) whether

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the person from whom discovery is sought is a participant in the foreign proceeding; (2) the nature

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of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of

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the foreign government or the court or agency abroad to U.S. federal-court judicial assistance;

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(3) whether the Section 1782(a) request conceals an attempt to circumvent foreign proof-gathering

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restrictions or other policies of a foreign country or the United States; and (4) whether the request

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is unduly intrusive or burdensome. Id. at 264–65.
III. DISCUSSION

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A.

Statutory Factors

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The United States has satisfied the three statutory criteria under Section 1782. First, the

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discovery is sought from Expedia, which is headquartered and has its principal place of business

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in Seattle, Washington. Dkt. No. 1-4 at 2. Second, the discovery is for use in a proceeding in a

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foreign tribunal, the First Instance Court in Buenos Aires, Argentina. Dkt. No. 1-2 at 6–8. And

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third, the applicant for the discovery is the aforementioned tribunal. Id.
ORDER APPOINTING COMISSIONER UNDER 28 U.S.C. § 1782 - 3

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B.

Discretionary Intel Factors

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At this stage, the Court also finds that the discretionary Intel factors weigh in favor of

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granting this request. First, Expedia is not a participant in the foreign proceedings underway in

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Argentina and it is not apparent that the First Instance Court could obtain the requested information

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from Expedia absent this Court’s assistance. Second, as the United States points out, the fact that

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an Argentinian tribunal made the instant request suggests that it is receptive to the assistance. See

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Dkt. No. 1 at 7. For the same reason, the third Intel factor related to the potential circumvention of

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a foreign tribunal’s discovery rules or other policies is not present here. See, e.g., In re Request for

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Jud. Assistance from the Dist. Ct. in Svitavy, Czech Republic, 748 F. Supp. 2d 522, 529 (E.D. Va.

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2010) (“[T]he fact that the request was initiated by the Svitavy Court itself, rather than a private

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litigant, provides sufficient assurance that the request does not attempt to circumvent Czech

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discovery rules or Czech policy.”).

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And last, the Court finds that the subpoena request is sufficiently tailored and not unduly

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intrusive or burdensome. See, e.g., In re Omori, No. 5:23-MC-80195-EJD, 2023 WL 5957172, at

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*4 (N.D. Cal. Sept. 12, 2023).
IV. CONCLUSION

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For the foregoing reasons, it is ORDERED that under the authority contained in 28 U.S.C.

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§ 1782, Nickolas Bohl, Assistant United States Attorney for the Western District of Washington,

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is hereby appointed as Commissioner to take such steps as are necessary to obtain information

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from Expedia in conformity with the legally permissible portions of the Letter of Request, Dkt.

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No. 1-2, to certify the information provided by Expedia in response thereto, to submit such answers

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to the United States Attorney for the Western District of Washington for transmission to the Office

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//

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//
ORDER APPOINTING COMISSIONER UNDER 28 U.S.C. § 1782 - 4

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of International Judicial Assistance, United States Department of Justice, and to do all else that

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may be necessary for the accomplishment of the purpose of this Order.

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Dated this 13th day of November, 2023.

A

Lauren King
United States District Judge

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ORDER APPOINTING COMISSIONER UNDER 28 U.S.C. § 1782 - 5