With respect to district court's compliance with letters rogatory from Panamanian court seeking information on assets of Panamanian citizen residing in Florida, Eleventh Circuit upholds lower court's power and its exercise of discretion under 28 U.S.C. Section 1782
Patricio Clerici (Respondent) is a citizen of Panama residing in Miami, Florida. He sued NoName Corporation (Petitioner) and others in Panama, requesting the attachment of Petitioner's property. Respondent failed to prosecute his case, however, and, in 2000, the court dismissed it. Petitioner then filed a lawsuit in Panama, claiming damages caused by Respondent's lawsuit and the attempted attachment of his assets. The Panamanian Court awarded Petitioner 1.9 million Balboas in damages and 294,589.70 Balboas in costs.
Petitioner did not try to enforce this judgment in the U.S. It merely petitioned the Panamanian Court to ask Respondent about his assets. Petitioner's nine questions to Respondent included the total amount and locations of his assets and where he does his banking. The Panamanian Court submitted written questions in the form of Letters Rogatory to a Florida federal court. Citing the Inter American Convention on Letters Rogatory [in force for the U.S. August 27, 1988, T.I.A.S.______] (the Convention), the request stated that the Petitioner plans to use the evidence in Panamanian civil proceedings.
The U.S. Government filed an ex parte application based on 28 U.S.C. Section 1782. The district court then appointed an Assistant U.S. Attorney to obtain sworn answers from Respondent for transmission to the Panamanian Court.
Respondent objected to the Government's application, however, arguing that Petitioner's Panamanian judgment is invalid and unenforceable in Florida. He also voiced several procedural objections. The district court denied Respondent's motion to vacate the Panamanian Government's application for judicial assistance, and granted its request for evidence. Respondent appealed but the U.S. Court of Appeals for the Eleventh Circuit affirms.
Section 1782 (a) authorizes federal courts to render judicial assistance in obtaining evidence in the U.S. under certain conditions. These are: (1) the request is from a foreign or international tribunal, or from any interested person; (2) the request seeks evidence in the form of testimony or production of documents; (3) the evidence is for use in a proceeding in a foreign or international tribunal; and (4) the Respondent is within the district court's jurisdiction.
The second and third requirements are at issue here. "As to the second statutory requirement that the request must seek evidence [Respondent] argues that the Panamanian Court is not seeking evidence, but rather is trying to enforce its judgment through a Section 1782 request. We disagree because the Panamanian Court asked for assistance in obtaining only [Respondent's] sworn answers to questions regarding his assets and other financial matters. The district court recognized this key distinction and properly concluded that the request for assistance ... was proper under Section 1782."
"Unlike the requests for judicial assistance in the cases cited in [Respondent's] brief. ... , the Panamanian Court never requested that the district court sequester, levy on, or seize control of [Respondent's] assets or otherwise help enforce [Petitioner's] judgment. ... The Panamanian Court requested only assistance in obtaining evidence sworn answers from [Respondent] to written questions and this is the primary purpose of Section 1782. Therefore, the second requirement for a proper request under Section 1782 is met."
"As to the third statutory requirement, we reject [Respondent's] contention that the requested evidence was not "for use in a proceeding' before the Panamanian Court. Here, there is a proceeding currently pending before the Panamanian Court that allows [Petitioner] or the Panamanian Court to question [Respondent] under oath about his properties, rights, credits, sustenance means, and other sources of income from the date of his court ordered obligation."
"Had [Respondent] been residing in Panama, [Petitioner] or the Panamanian Court would have been able to interrogate [Respondent] directly with the questions proposed by [Petitioner]. Because [Respondent] was residing in Florida, however, the Panamanian Court issued a letter rogatory seeking international assistance in order to obtain this evidence. The Panamanian Court's letter rogatory itself stated that this evidence "will be used in the civil process before this court.' Such a request is clearly within the range of discovery authorized under Section 1782 and comports with the purpose of the statute to provide assistance to foreign tribunals." [Slip op. 7 8]
That does not mean, however, that the district court has no discretion and must grant the request. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) set forth the following discretionary factors for the court to consider in Section 1782 proceedings: (1) whether "the person from whom discovery is sought is a participant in the foreign proceeding"; (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 Section 1782(a) 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 otherwise "intrusive or burdensome." Intel at 264 65. Unduly intrusive or burdensome requests may be rejected or trimmed. Id. at 265."
"Here, none of the Intel factors favors Respondent. First, even though Respondent is a party to the Panamanian proceeding, he is not present there. Second, the Panamanian proceeding is not of the kind that would give the district court any reason to refuse judicial assistance. Third, the Panamanian request is not an attempt to avoid rules or policies. Finally, the request is not unduly intrusive. Thus, the district court did not abuse its discretion in granting the Section 1782 application.
Petitioner, of course, cannot enforce the Panamanian judgment in the U.S. until it has been "domesticated." Meanwhile, the district court does have the power to provide limited judicial assistance to the Panamanian court through Section 1782.
Citation: In re Clerici, 2007 WL 840327 (11th Cir. 2007).
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