In re Application of FURSTENBERG FINANCE SAS, MARC BATAILLON, Petitioners - Appellees,
LITAI ASSETS LLC, Respondent - Appellant.
from the United States District Court for the Southern
District of Florida D.C. Docket No. 0:16-cv-60266-BB
HULL and BLACK, Circuit Judges, and RESTANI, [*] Judge
Finance SAS and Marc Batallion (collectively, Applicants)
applied to the district court under 28 U.S.C. § 1782 for
an order requiring Litai Assets, LLC (Litai) to produce
certain discovery for use in foreign proceedings. Applicants,
minority shareholders in Acheron Portfolio Company, S.A.
(Acheron), cited plans to initiate proceedings in Luxembourg
against Dr. Jean-Michael Paul, a member of Acheron's
Board of Directors, for his undisclosed ownership interest in
Litai. The district court granted the application and issued
subpoenas. Litai moved to quash. Applicants cross-moved to
compel. Litai appeals from the district court's order
denying its motion to quash and granting Applicants'
cross-motion, alleging two of the statutory requirements
under § 1782 are unmet.
turning to Litai's arguments, we must address
jurisdiction. "[A] federal court is obligated to inquire
into subject matter jurisdiction sua sponte whenever
it may be lacking." Univ. of S. Ala. v. Am. Tobacco
Co., 168 F.3d 405, 410 (11th Cir. 1999). Under 28 U.S.C.
§ 1291, the courts of appeals have jurisdiction over
"appeals from all final decisions of the district courts
of the United States . . . except where a direct review may
be had in the Supreme Court." Typically, the denial of a
motion to quash a subpoena is not appealable as to the party
subpoenaed unless that party defies the order, risking
contempt sanctions. See In re Fed. Grand Jury Proceedings
(Cohen), 975 F.2d 1488, 1491 (11th Cir. 1992). This
Court has never addressed, in a published opinion, whether an
order denying a motion to quash a subpoena is a final,
appealable order in proceedings brought under § 1782.
See Fuhr v. Credit Suisse AG, 687 Fed.Appx. 810,
814-15 (11th Cir. 2017) (concluding, in an unpublished
opinion, that such orders are appealable).
conclude that an order denying a motion to quash a subpoena
is a final, appealable order in proceedings brought under
§ 1782. Many of our sister circuits have determined that
an order granting or denying a § 1782 application is
immediately appealable. But the issue before us is more
specific. Litai did not appeal the district court's order
granting the § 1782 application; instead, Litai appealed
the denial of its subsequent motion to quash.
Ninth Circuit has addressed an analogous situation. The Court
concluded it had jurisdiction over an appeal from the denial
of a protective order in a proceeding under § 1782,
acknowledging that the protective order "effectively
would have quashed the subpoena." See In re Premises
Located at 840 140th Ave. NE, Bellevue, Wash., 634 F.3d
557, 562, 567 (9th Cir. 2011). The opinion cited "an
important difference between an appeal from an order
concerning an ongoing domestic . . . case and an appeal from
an order concerning a request under the procedural mechanism
of 28 U.S.C. § 1782." Id. at 565-66. In a
§ 1782 proceeding, the underlying case is necessarily
conducted in a foreign tribunal. Therefore, "[o]nce the
district court has ruled on the parties' motions
concerning the evidentiary requests, there is no further case
or controversy before the district court." Id.
at 566. We find the Ninth Circuit's reasoning persuasive
and adopt it here. Because the district court's order
denying Litai's motion to quash effectively resolved the
case or controversy, the order is appealable.
that jurisdiction exists, we turn to the
merits. A district court may not grant an
application under § 1782 unless four statutory
requirements are met: (1) the request must be made "by a
foreign or international tribunal" or by "any
interested person"; (2) the request must seek evidence,
be it the testimony or statement of a person or the
production of a document or other thing; (3) the evidence
must be "for use in a proceeding in a foreign or
international tribunal"; and, finally, (4) the person
from whom discovery is sought must reside or be found in the
district of the district court ruling on the application for
assistance. In re: Clerici, 481 F.3d 1324, 1331
(11th Cir. 2007). Litai asserts the district court erred
because the first and third requirements are unmet. We
district court did not err by concluding the discovery sought
was "for use in a proceeding in a foreign or
international tribunal." 28 U.S.C. § 1782.
Applicants intend to file a criminal complaint with a claim
for damages in Luxembourg. The complaint will trigger a
criminal investigation by a judge. Such investigations are
proceedings within the meaning of § 1782. Id.
(authorizing the production of evidence "for use in a
proceeding in a foreign or international tribunal, including
criminal investigations conducted before formal
the district court err by concluding Applicants have produced
"reliable indications of the likelihood that proceedings
will be instituted within a reasonable time."
Application of Consorcio Ecuatoriano de
Telecommunicaciones S.A. v. JAS Forwarding (USA) Inc.,
747 F.3d 1262, 1270 (11th Cir. 2014) (quoting In re
Letter of Request from the Crown Prosecution Serv. of the
U.K., 870 F.2d 686, 692 (D.C. Cir. 1989)). Applicants
maintain that they will file proceedings in Luxembourg within
forty-five days of receiving the discovery sought under
§ 1782. The application to the district court also
included specific evidence supporting Applicants' claims.
For example, Applicants cited an e-mail from a former member
of Acheron's Board of Directors, Eric Kalfon, confirming
that he had resigned because of Paul's "effective
control of Litai."
Litai contends Applicants are not "interested
persons" within the meaning of § 1782. We disagree.
In Intel Corp. v. Advanced Micro Devices, Inc., 542
U.S. 241 (2004), the Supreme Court concluded the applicants,
who had filed an antitrust complaint with the Directorate
General for Competition of the European Union, were
"interested persons" within the meaning of §
1782 because they had significant "participation
rights" in the proceedings. Id. at 250, 256.
The Supreme Court emphasized that, as part of the process,
the applicants had the right to prompt an investigation, to
submit evidence for consideration, and to proceed to court if
the investigation was discontinued or the complaint was
dismissed. Id. at 256. Here, Applicants plan to file
a criminal complaint with a claim for civil damages in
Luxembourg. As part of the process, Applicants have the right
to submit information for the investigating judge's
consideration. A criminal investigation will begin unless the
judge concludes the complaint is inadmissible. Any of the
parties can appeal a decision not to proceed.