Opinion
19-MC-1621 (LDH)
08-20-2019
IN RE Application of G2A.COM SP. Z.O.O. (LTD.) for an order to obtain discovery for use in a foreign proceeding from Gate Arena LLC and Jacek Bryla, Petitioner.
Philip D. Robben, Kelley Drye & Warren, LLP, New York, NY, for Petitioner.
Philip D. Robben, Kelley Drye & Warren, LLP, New York, NY, for Petitioner.
MEMORANDUM AND ORDER
LaSHANN DeARCY HALL, United States District Judge Petitioner G2A.com Sp. Z.O.O. (Ltd.) ("G2A") applies ex parte, pursuant to 28 U.S.C. § 1782 and Rules 26 and 45 of the Federal Rules of Civil Procedure, directing the issuance and service of subpoenas ad testificandum and duces tecum on Gate Arena LLC and Jacek Bryla in furtherance of discovery in aid of and for use in a pending proceeding before the Polish Head of Tax & Customs Office (the "Polish Authority"). (ECF No. 1.)
"In ruling on an application made pursuant to section 1782, a district court must first consider the statutory requirements and then use its discretion in balancing a number of factors." Brandi-Dohrn v. IKB Deutsche Industriebank AG , 673 F.3d 76, 80 (2d Cir. 2012). The statute authorizes a district court to grant a request for discovery where "(1) the person from whom discovery is sought resides (or is found) in the district of the district court to which the application is made, (2) the discovery is for use in a foreign proceeding before a foreign tribunal, and (3) the application is made by a foreign or international tribunal or any interested person." Id. The instant petition meets these jurisdictional requirements.
First , Jacek Bryla resides, and Gate Arena is situated, in Suffolk County, under the purview of this Court. (Decl. Maciej Jaworowski ("Jaworowski Decl.") ¶¶ 4–5, ECF No. 3.) Second , the discovery sought would inform a foreign investigation conducted by the Polish Authority. (Id. ¶ 15.) Third , Petitioner is an interested person because it is personally involved as a litigant in the proceeding for which discovery is sought. (Id. ¶ 2); see also Certain Funds, Accounts and/or Inv. Vehicles v. KPMG, L.L.P. , 798 F.3d 113, 119 (2d Cir. 2015) ("[T]he phrase ‘any interested person’ is ‘intended to include ... litigants ... [and] any other person ... [who] merely possess[es] a reasonable interest in obtaining the [information]." (citation omitted)).
Once the statutory requirements are satisfied, courts are "free to grant discovery [at their] discretion." Schmitz v. Bernstein Liebhard & Lifshitz, LLP , 376 F.3d 79, 83–84 (2d Cir. 2004) (quoting In re Application of Metallgesellschaft AG , 121 F.3d 77, 78 (2d Cir. 1997) ); see also Application of Esses , 101 F.3d 873, 876 (2d Cir. 1996) ("[D]istrict courts [have] wide discretion to determine whether to grant discovery .... [as long as it is ordered] in accordance with [the statutory provisions]."). The United States Supreme Court has outlined four "factors that bear consideration in ruling on a § 1782(a) request": (1) whether the person from whom discovery is sought is a participant in the foreign proceedings at issue; (2) "the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance"; (3) whether the "request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States": and (4) whether the request is "unduly intrusive or burdensome." Intel Corp. v. Advanced Micro Devices, Inc. , 542 U.S. 241, 264–65, 124 S.Ct. 2466, 159 L.Ed.2d 355 (2004).
Here, Petitioner has offered facts allowing the Court to construe these factors in its favor. First , Gate Arena is not a participant in the foreign proceeding and operates beyond the jurisdiction of the Polish Authority. (See Jaworowski Decl. ¶¶ 2, 4.) Second , Poland is not averse to receiving assistance from the United States, especially during tax-related investigations. (See id. ¶ 6.) Third , the Court has no reason to doubt Petitioner's good faith. Fourth , the discovery sought is neither burdensome nor intrusive, and targets only those documents clarifying the nature of the business relationship between Petitioner and Gate Arena. (See generally Decl. Philip Robben, ECF No. 2.)
Accordingly, Petitioner's application is GRANTED.
SO ORDERED.