...Must,
But Do Not; Satisfy the Heightened Rule 60(b) Standards for Vacating the
Discovery Order
By: Louis M.
Solomon
In re Application of Dr. Alfonso
Henrique Alves Braga, in his capacity as Judicial Administrator of Petroforte
Brasilerio de Petroleo Ltda, et al. pursuant to 28 U.S.C. § 1782 For Judicial
Assistance in Obtaining Evidence Located in the Southern District of Florida, Case No. 10-23973-MC-King/Goodman (S.D.N.Y Mar. 2011) [enhanced version available to lexis.com subscribers ], deserves another brief look, since it addresses a timely
area of international litigation practice: discovery in the U.S. for use
abroad (see the discussion of this potent discovery device for use in non-U.S. proceedings in
our e-book, International
Practice: Topics and Trends. Given the recent Court of Appeals
authority suggesting that, perhaps, as a blog title of ours suggested, there
may be limits to § 1782 discovery after all, the question arises how can those
limits be found, and who has the right to assert them.
Petroforte involves the efforts by a
judicial administrator of a Brazilian bankrupt entity to secure discovery in
the U.S. for use in the Brazilian proceedings. In an earlier ruling the Court
granted the § 1782 discovery request based on an ex parte motion. The current
decision addresses whether intervenors, including Rural International Bank
Ltd., made the requisite showing to open the prior order. The District Court
here holds that intervenors have not made the requisite showing under Fed. R.
Civ. P. 60 to vacate the prior § 1782 Order. Key to the motion to vacate is the
argument there is no relationship between the parties in Brazil and the parties
as to whom discovery is being sought. Intervenors also claim that disclosure of
the information sought would require disclosure of privileged and confidential
business information "in conflict with both U.S. and Cayman Islands law".
In the decision, the District Court
acknowledges that § 1782 applications are "typically and routinely" made on an
ex parte basis in the Southern District of Florida. Yet the Court applied the
stricter Rule 60(b) standards for vacating the order, even though granted ex
parte; the grounds for vacateur under Rule 60(b) include "unexpected and unfair
surprise", misrepresentations, and other extraordinary reasons. The District
Court did not address the question whether someone at some point in the process
should be able to assert non-extraordinary objections to a § 1782 application.
Indeed, the combination of ex parte motion practice going in coupled with the
heighted standard under Rule 60(b) to vacate such an order would appear to mean
that at no point is there a level playing field between the forces seeking and
opposing § 1782 discovery. The District Court was unwilling to decide the hotly
disputed non-U.S. law issue and, as a result, used the standard of good faith
on the part of the appicant to support the grant of § 1782 discovery.
In a footnote, the District Court
states that its conclusion that no grounds exist to vacate the earlier order
did not foreclose the possibility of the privilege objection being raised as a
"valid objection to the requested discovery". The Court did not explain when
that objection might be asserted, who may assert it (e.g., the
intervenors?), or how or on what standard the Court would adjudicate that in
the context of what is intended to a streamlined § 1782 procedure.
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