Opinion
19 Misc. 573 (KPF)
01-03-2020
In re: APPLICATION OF MAURICIO MOTA FOR AN ORDER TO TAKE DISCOVERY FOR USE IN FOREIGN PROCEEINGS PURSUANT TO 28 U.S.C. § 1782
ORDER GRANTING APPLICATION FOR DISCOVERY ASSISTANCE UNDER 28 U.S.C. § 1782
:
THIS MATTER came before the Court pursuant to an Application for Discovery Assistance with Respect to Foreign Legal Proceedings (the "Application"), by Mauricio Mota ("Petitioner"), under 28 U.S.C. § 1782. The Court has reviewed the Application (Dkt. #1), Petitioner's supporting memorandum (Dkt. #3) and the Declaration of William J. Hine and the exhibits thereto (Dkt. #4). It has also considered 28 U.S.C. § 1782, the statutory and discretionary factors associated therewith, and the relevant case law. See, e.g., Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004); Certain Funds, Accounts &/or Inv. Vehicles v. KPMG, L.L.P., 798 F.3d 113, 114-15 (2d Cir. 2015); Mees v. Buiter, 793 F.3d 291, 302 (2d Cir. 2015). The statutory requirements of 28 U.S.C. § 1782 are satisfied in that: (i) the discovery is sought from entities that are "found" or reside in New York, New York, i.e., (a) J.P. Morgan Chase & Co.; (b) Fabio Pegas; (c) Patricia Pratini De Moraes; and (d) Blessed Holdings Inc. (collectively, the "Respondents"); (ii) the discovery sought is for use in pending court proceeding in Brazil, i.e., Mauricio Jorge Pereira de Mota v. Joesley Mendonca Batista, et al., No. 5089754-29.2019.4.02.5101 (8th Federal Court of the Judiciary Section of the State of Rio de Janeiro) (the "Foreign Proceeding"); and (iii) Petitioner is an "interested person," as he is a party in the Foreign Proceeding. Moreover, the discretionary factors articulated in Intel, 542 U.S. at 264-66, weigh in favor of granting the Application: (i) the Respondents are not parties in the Foreign Proceeding in Brazil and may be beyond the jurisdiction of the foreign tribunal; (ii) the foreign tribunal will be receptive to the evidence obtained through 28 U.S.C. § 1782; (iii) Petitioner is seeking discovery from the Respondents in good faith for use in the Foreign Proceeding; and (iv) the discovery requested is not unduly intrusive or burdensome; rather, through the proposed subpoenas, Petitioner seeks discovery relevant to and for use in the Foreign Proceeding through limited and narrowly-tailored document requests directed to (and potentially depositions of) each Respondent.
After concluding that these factors support the granting of Petitioner's request, the Court hereby ORDERS and ADJUDGES as follows: 1. Petitioner's Application for an order to take discovery from: (i) J.P. Morgan Chase & Co., (ii) Fabio Pegas, (iii) Patricia Pratini De Moraes, and (iv) Blessed Holdings Inc. (collectively, the "Respondents"), for use in foreign proceedings pursuant to 28 U.S.C. § 1782 is GRANTED; 2. Petitioner is authorized, pursuant to 28 U.S.C. § 1782, to take discovery from the Respondents relating to the issues identified in the Application, including:
a. issuing subpoenas for the production of documents in substantially the form attached to the Application as Exhibits 2-5; and3. This Order is without prejudice to the Respondents' rights to assert objections in relation to the subpoenas.
b. issuing subpoenas for the taking of depositions of the Respondents as Petitioner reasonably may deem appropriate and as are consistent with the Federal Rules of Civil Procedure; and
SO ORDERED. Dated: January 3, 2020
New York, New York
/s/_________
KATHERINE POLK FAILLA
United States District Judge