Opinion
23 Misc. 240 (AT)
08-14-2023
In re Application of Banco Sistema S.A., Applicant, Pursuant to 28 U.S.C. § 1782 for Judicial Assistance in Obtaining Evidence for Use in Foreign and International Proceedings Pending in the Federative Republic of Brazil.
ORDER
ANAL1SA TORRES UNITED STATES DISTRICT JUDGE
On July 21, 2023, Applicant, Banco Sistema S.A., submitted an ex parte petition (the “Petition”) for an order pursuant to 28 U.S.C. § 1782 to obtain discovery for use in a civil proceeding already filed in the 1st Civil Court of the City of Curitiba in the Federative Republic of Brazil. Pet. ¶¶ 5, 16, ECF No. 1; see also Pimenta Decl. ¶¶ 8, 19, 23, ECF No. 2. Applicant seeks permission to serve subpoenas on: The GRTB, LLC (“GRTB”), Julio Bogoricin Real Estate Corp. (“Bogoricin Real Estate”), 23 West 69th Street Corp. (“23 West”), and 58 West 87th Street Corp. (“58 West”) (together, the “Respondents”). Pimenta Decl. ¶¶ 20-21, 23, 40; see Pet. ¶ 18; ECF No. 1-1. Applicant also seeks permission to proceed ex parte. Pet. at 17. For the following reasons, the Petition is GRANTED.
DISCUSSION
I. Legal Standard
“A district court has authority to grant a § 1782 application 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 or international tribunal, and (3) the application is made by a foreign or international tribunal or any interested person.” Mees v. Buiter, 793 F.3d 291, 297 (2d Cir. 2015) (internal quotations and alterations omitted). Courts routinely grant such petitions ex parte. Gushlak v. Gushlak, 486 Fed.Appx. 215, 217 (2d Cir. 2012) (summary order) (“[I]t is neither uncommon nor improper for district courts to grant applications made pursuant to § 1782 ex parte.”).
In determining whether to grant a § 1782(a) petition, the Court may also consider “(1) whether the person from whom discovery is sought is a participant in the foreign proceeding, in which case the need for § 1782(a) aid generally is not as apparent; (2) the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign . . . court or agency abroad to U.S. federal-court judicial assistance; (3) whether the § 1782(a) request conceals an attempt to circumvent foreign proof-gathering restrictions; and (4) whether the request is unduly intrusive or burdensome.” In re Catalyst Managerial Servs., DMCC, 680 Fed.Appx. 37, 38-39 (2d Cir. 2017) (summary order) (quoting Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264-65 (2004)) (internal quotation marks omitted).
II. Analysis
A. Ex Parte Proceeding
Courts routinely grant similar petitions ex parte. Gushlak, 486 Fed.Appx. at 217. Accordingly, Applicant's request to proceed without serving the Petition on Respondents is GRANTED.
B. The Petition
Applicant has met all three statutory requirements. First, Applicant argues that Bogoricin Real Estate, 23 West, and 58 West, reside in this District, and that GRTB can be found in this District. Pet. at 9-10; Pimenta Decl. ¶ 20; ECF Nos. 1-2-1-5. Second, Applicant has established that it intends to use the discovery in an ongoing Brazilian proceeding. Pet. at 11; Pimenta Decl. ¶¶ 23, 48. Under the plain text of § 1782, a foreign proceeding includes “a proceeding in a foreign or international tribunal.” 28 U.S.C. § 1782(a); Mees, 793 F.3d at 299 (“[A]pplicant may seek discovery of any materials that can be made use of in the foreign proceeding to increase [its] chances of success.”). Third, Applicant is a party to the foreign proceeding. Pet. at 11; Pimenta Decl. ¶¶ 8, 14.
Each of the discretionary factors also weigh in favor of granting the Petition. First, Respondents are not participants in the Brazilian proceeding. Pimenta Decl. ¶ 46. Second, the Brazilian court issued an order “allowing [Applicant] to pursue seizure of [f]oreign [d]efendants' assets abroad in light of the . . . evidence of [their] pattern of moving their assets out of reach from their creditors.” Pet. at 15; see, e.g., Pimenta Decl. ¶¶ 18, 32. Third, there is no evidence that Applicant is attempting to circumvent any proof-gathering restrictions imposed by Brazilian law or otherwise seeking the discovery in bad faith. Finally, the subpoenas Applicant proposes are not unduly intrusive or burdensome. See ECF No. 1-1. Accordingly, the Petition is GRANTED.
CONCLUSION
For the reasons stated above, the Petition is GRANTED.
The Clerk of Court is directed to terminate the motion at ECF No. 1 and to close the case.
SO ORDERED.