16-3655
Bouvier v. Adelson

                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT

                                   SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 28th
day of August, two thousand seventeen.

PRESENT:
              REENA RAGGI,
              SUSAN L. CARNEY,
                         Circuit Judges,
              LEWIS A. KAPLAN,*
                         District Judge.

________________________________________________

IN RE ACCENT DELIGHT INTERNATIONAL LTD.,
XITRANS FINANCE LTD.

________________________________________________

YVES BOUVIER, MEI INVEST LTD.,

                      Intervenors-Appellants,

              v.                                                      No. 16-3655


       *

              Judge Lewis A Kaplan, United States District Court for the Southern District of New York,
              sitting by designation.
     WARREN ADELSON, ALEXANDER PARISH,
     ROBERT SIMON,

                            Respondents-Appellees,

     ACCENT DELIGHT INTERNATIONAL LTD.,
     XITRANS FINANCE LTD.,


                            Petitioners-Appellees,

     SOTHEBY’S,

                       Respondent.
     ________________________________________________




     APPEARING FOR INTERVENORS-APPELLANTS:                         DANIEL W. LEVY (James H. Smith, on
                                                                   the brief), McKool Smith, P.C., New
                                                                   York, NY.


     APPEARING FOR PETITIONERS-APPELLEES:                          DANIEL J. KORNSTEIN (O. Andrew F.
                                                                   Wilson and Douglas E. Lieb, on the
                                                                   brief), Emery Celli Brinckerhoff &
                                                                   Abady LLP, New York, NY.

 1          Appeal from an order of the United States District Court for the Southern District of New
 2   York (Furman, J.).
 3
 4       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
 5   DECREED that the October 5, 2016 order of the district court is AFFIRMED.
 6
 7           Intervenors-Appellants Yves Bouvier and MEI Invest Ltd. (collectively, “Bouvier”) appeal
 8   from an order of the United States District Court for the Southern District of New York (Furman,
 9   J.) granting the application of Petitioners-Appellees Accent Delight International Ltd. and Xitrans
10   Finance Ltd. (collectively, “Petitioners”) for discovery in aid of foreign litigation under 28 United
11   States Code Section 1782. In an opinion also issued today, we affirm a portion of the District
12   Court’s order pertaining to two of Bouvier’s appellate arguments concerning the scope of Section
13   1782. In this summary order, we AFFIRM the district court’s order with respect to the remaining
14   issues on appeal. We assume the parties’ familiarity with the underlying facts, the procedural
15   history, and the issues presented for review.

                                                      2
 1           I.      Standard of Review
 2
 3           This court reviews de novo the determination by the district court that the statutory
 4   requirements for discovery under Section 1782 are met. Euromepa, S.A. v. R. Esmerian, Inc., 154
 5   F.3d 24, 27 (2d Cir. 1998). If those requirements are met, we review the determination whether to
 6   grant discovery for abuse of discretion. Id.
 7
 8           II.     Consideration of the Intel Discretionary Factors
 9
10            The decision whether to grant discovery under Section 1782 rests within the discretion of the
11   district court. That discretion, however, is not boundless. The Supreme Court in Intel Corp. v.
12   Advanced Micro Devices, Inc., 542 U.S. 241 (2004), provided relevant considerations to guide
13   district courts when considering Section 1782 applications. We have distilled these considerations
14   into a four-factor test:
15
16                   (1) whether “the person from whom discovery is sought is a participant in the foreign
17                   proceeding,” in which case “the need for [Section] 1782(a) aid generally is not as
18                   apparent”; (2) “the nature of the foreign tribunal, the character of the proceedings
19                   underway abroad, and the receptivity of the foreign government or the court or
20                   agency abroad to U.S. federal-court judicial assistance”; (3) “whether the [Section]
21                   1782(a) request conceals an attempt to circumvent foreign proof-gathering
22                   restrictions or other policies of a foreign country or the United States”; and (4)
23                   whether the request is “unduly intrusive or burdensome.”
24
25   Mees v. Buiter, 793 F.3d 291, 298 (2d Cir. 2015) (quoting Intel, 542 U.S. at 264-65).
26
27           Bouvier argues that the district court failed properly to consider the Intel factors, specifically
28   the third factor, in granting Petitioners’ application. He maintains also that the court erred when it
29   declined his request to submit supplemental briefing on the Intel factors. We reject these
30   contentions.
31
32           First, the record does not support Bouvier’s claim that the district court failed to consider the
33   third Intel factor. To the contrary, the court stated that “[t]he discretionary factors favor[ed]”
34   discovery. S.P.A. 5. To be sure, the court in its memorandum opinion discussed at length only the
35   fourth factor. But that is unsurprising given that Bouvier focused on that factor in his briefing and
36   because none of the other factors was in serious dispute. As to the third factor, the letter from the
37   magistrate in Monaco, in which he stated that he would accept Petitioners’ submission of the
38   requested discovery, defeats Bouvier’s argument that Petitioners’ application was an attempt to
39   circumvent the evidence-gathering policies of that country. We discern no error in the district
40   court’s Intel analysis that would constitute an abuse of discretion.
41
42            Second, the district court did not err in declining to consider supplemental briefing on the
43   Intel factors after it had ruled on Petitioners’ application. The parties briefed the Intel factors in their
44   initial submissions to the court. When Petitioners submitted the letter from the magistrate presiding

                                                          3
 1   in Monaco, Bouvier did not readdress the Intel factors in his response. By the time it ruled, the
 2   district court had received multiple submissions from each side and had heard oral argument. We
 3   therefore hold that the court acted entirely within its discretion in rejecting Bouvier’s request for
 4   additional briefing.
 5
 6          III.    Application of Section 1782 to Documents Located Outside of the United States
 7
 8            Bouvier next argues that the district court erred in granting the Section 1782 application as
 9   to documents located outside the United States. Whether Section 1782 permits such discovery
10   presents a question on which we have not yet ruled. See, e.g., In re Application of Sarrio, S.A., 119
11   F.3d 143, 147 (2d Cir. 1997) (declining to reach issue). The issue has divided district courts in this
12   circuit. Compare In re Application of Godfrey, 526 F. Supp. 2d 417 (S.D.N.Y. 2007) (documents
13   located outside United States not discoverable under Section 1782), with In re Application of
14   Gemeinschaftspraxis Dr. Med. Schottdorf, No. M19-88 (BSJ), 2006 WL 3844464 (S.D.N.Y. Dec.
15   29, 2006) (reaching opposite conclusion).
16
17           We decline to rule on this question because it is not properly before us. The district court
18   noted that the question “seem[ed] academic” in this case because respondent Sotheby’s never
19   asserted that documents responsive to Petitioners’ discovery request were located abroad. S.P.A.
20   5. Moreover, Bouvier acknowledges in his appellate briefs “the lack of any factual record about
21   where the documents were stored.” Appellants’ Reply Br. 25. As there is no reason to believe that
22   the agreed-upon document production in this case includes any documents located abroad, we
23   decline to rule on the issue.
24
25          II.     Conclusion
26
27          Accordingly, the October 5, 2016 order of the district court is AFFIRMED.
28
29
30                                                         FOR THE COURT:
31                                                         Catherine O’Hagan Wolfe, Clerk of Court
32
33
34




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