From Russia with love: 11th Circuit affirms the utility of 28 U.S.C. s. 1782 in international discovery.

• Author: Tessitore, Michael

The tool kit of the international litigator, both foreign and domestic, has long included the powerful discovery device set forth in 28 U.S.C. [section]1782. The statute is the product of nearly 150 years of efforts by Congress to provide federal court assistance in gathering evidence for use in foreign tribunals. (1) The statute currently provides in pertinent part:

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 ... 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.... 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. (2)

The statute "authorizes, but does not require," that district courts provide judicial assistance to [section]1782 applicants. (3)

The utility of the statute and the broad discretion of the district courts in giving it effect was significantly bolstered by the 11th Circuit's recent decision in Sergeeva v. Tripleton International Ltd., Nos. 15-13008 & 15-15066, 2016 WL 4435616 (11th Cir. Aug. 23, 2016). In Sergeeva, the court held that the [section]1782 applicants may reach documents located outside of the U.S. if they are in the possession, custody, or control of a U.S. resident, and that a party that refuses to comply with an order requiring the gathering and production of such documents may be subject to monetary sanctions and be held in contempt. (4)

The Facts and Reasoning in Sergeeva

In Sergeeva, former spouses Mikhail Leopoldovich Dubin and Anna Sergeeva commenced a proceeding in their home nation of Russia regarding division of their marital assets after a 16-year marriage. Anna was adamant that Mikhail had been concealing and dissipating marital assets through a series of "offshore companies" located around the globe. While Anna attempted to obtain discovery relating to these offshore entities, Mikhail opposed her efforts at every turn, often employing tactics that served no other purpose but to evade or delay the production of documents. The clash between the former husband and wife took the legal dispute to places such as Cyprus, Latvia, and the Bahamas--and eventually the United States. In the U.S., Anna sought documents from an Atlanta-based corporation, Trident Corporate Services, Inc. (Trident Atlanta), which she believed possessed information that would evidence her ex-husband's beneficial interest in a Bahamian corporation. When Trident Atlanta did not comply, Anna filed an action pursuant to 28 U.S.C. [section]1782 in the district court with the goal of receiving judicial assistance in obtaining documents from Trident Atlanta. After...