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In re ex Parte Application of Petro Welt Trading GES.M.B.H

United States District Court, M.D. Florida, Fort Myers Division

April 26, 2018

IN RE EX PARTE APPLICATION OF PETRO WELT TRADING GES.M.B.H FOR TO OBTAIN DISCOVERY FOR USE IN FOREIGN PROCEEDING

          ORDER

          Carol Mirando, Judge

         This matter comes before the Court upon review of the Supplemental Ex Parte Application of Petro Welt Trading Ges.m.b.H (“Applicant” or “Petro Trading”) for Order to Obtain Discovery for Use in Foreign Proceeding (the “Supplemental Application”) filed on April 24, 2018. Doc. 8; see also Docs. 9-10. The Court granted Applicant's previous Ex Parte Application (the “Initial Application”), authorizing Applicant to obtain discovery from five individuals and a limited liability company (“Initial Respondents”) for use in pending litigation before the District Court of Nicosia, Cyprus (“the Foreign Proceeding”). Doc. 7. Based on the information furnished by the Initial Respondents, Applicant now seeks an order authorizing the issuance of subpoenas to obtain discovery from two more individuals for use in the Foreign Proceeding.[1] For the reasons discussed below, the Court will grant the Supplemental Application and permit Petro Trading to serve its proposed subpoenas on Stuart Thompson and Debra Anton (“Secondary Respondents”).

         I. Background

         Applicant is one of several plaintiffs in the Foreign Proceeding, which “seeks redress for the fraudulent scheme” through which the defendants in that case-CAT Partnership, AB PCO and Anna Brinkmann-allegedly abused positions of authority to “diver[t] funds to themselves in violation of their contractual and fiduciary obligations.” Doc. 8 at 3-4; see also Doc. 9 at 4-5. Applicant alleges Ms. Brinkmann sent proceeds of the fraud to her son, Edward Brinkmann, or to his company, Majab Development LLC (“Majab”), to launder and conceal the diverted funds through the purchases of real estate properties. Doc. 8 at 3; Doc. 9 at 6-7. Specifically, Majab purchased properties: (1) on March 2, 2015 from Lelan Wheeler for $300, 000; (2) on June 12, 2015 from Meggie and Richard Counts for $3, 825, 000; (3) on November 12, 2015 from Peter and Laura Justinius for $980, 000; and (4) on December 30, 2016 from MRDLS LLC for $2, 900, 000. Doc. 9 at 6-7.

         Petro Trading filed its Initial Application on March 6, 2018 seeking assistance with obtaining evidence related to Initial Respondents' real estate transactions with Majab. Doc. 1. Specifically, Applicant sought to serve subpoenas requiring the production of documents and deposition testimony from each of the Initial Respondents about the real estate sales so Applicant could determine whether the funds used to purchase the properties were proceeds of the alleged fraudulent scheme at issue in the Foreign Proceeding. Doc. 2 at 7; see also Doc. 1 at 15-16, 24-25, 32-33, 41-42, 49-50, 58-59.

         Based on the documents and testimony collected from Initial Respondents, Applicant determined Secondary Respondents would likely have “key information” directly relevant to Majab's real estate purchases from the Initial Respondents. Doc. 8 at 2; see also Doc. 9 at 7-8. For at least three of the transactions between Majab and the Initial Respondents, Mr. Thompson and Ms. Anton acted as Majab's escrow/settlement agent and real estate agent, respectively. Doc. 8 at 2; Doc. 9 at 8 (citing Doc. 10 ¶¶ 6-7; Doc. 10 at 3-14). Further, at least some of the purchase monies for the transactions passed through Mr. Thompson as an intermediary. Doc. 9 at 8; Doc. 10 ¶¶ 6-7; Doc. 10 at 3-14. Therefore, Applicant asserts Secondary Respondents would likely have relevant documents and testimony regarding the source of the funds used in the transactions such that Applicant could determine whether the funds were proceeds of the alleged fraudulent scheme at issue in the Foreign Proceeding. Doc. 9 at 8.

         II. Discussion

         Under 28 U.S.C. § 1782, a United States district court may assist litigants in foreign proceedings with the discovery of documentary and testimonial evidence.

         The statute states:

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 . . . . 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 party 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.
A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.

§ 1782(a). A district court thus is authorized to grant a request under § 1782 if the following 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, whether it be 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 (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, 1331-32 (11th Cir. 2007) (internal quotation marks omitted) (citing ยง ...


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