In re Lloreda

323 F. Supp. 3d 552
CourtDistrict Court, S.D. Illinois
DecidedSeptember 4, 2018
Docket18mc207 (DLC)
StatusPublished
Cited by1 cases

This text of 323 F. Supp. 3d 552 (In re Lloreda) is published on Counsel Stack Legal Research, covering District Court, S.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Lloreda, 323 F. Supp. 3d 552 (S.D. Ill. 2018).

Opinion

DENISE COTE, United States District Judge

On May 16, 2018, petitioner Arturo Escallón ("Petitioner") applied to take discovery pursuant to 28 U.S.C. § 1782 in connection with ongoing and contemplated proceedings in Colombia. For the reasons stated on the record at a conference of August 24 and herein, the petition is denied.

BACKGROUND

The following facts are drawn from the declarations and exhibits submitted by the parties in support of and opposition to the motion. This proceeding arises from a contentious and protracted intra-family dispute among Colombian domiciliaries, which has spanned twelve years and spawned some fifteen civil and criminal legal proceedings in Colombia. Principally at issue are the estate assets of Dr. Gustavo Escallón ("Dr. Escallón"), a wealthy citizen of Colombia who died in 2006. Petitioner Arturo Escallón is one of four children of Dr. Escallón and his wife, Lucrecia. Respondents Patricia Ardila and Carlos Ardila ("the Ardilas") are Petitioner's sister and brother-in-law. Petitioner brings this application to take discovery pursuant to 28 U.S.C. § 1782 of the Ardilas and Lucia Galarza, an employee of Mr. Ardila in New York.

The petition seeks deposition testimony and document discovery related to two accounts with Merrill Lynch in New York ("the Merrill Lynch Accounts"), and an account with J.P. Morgan in Switzerland ("the J.P. Morgan Account"), that Dr. Escallón opened before his death. It also *555seeks information and documentation about the corporate structure and ownership of Clear Pond Investment Corporation ("Clear Pond"), a Panamanian corporation formed by Dr. Escallón as an estate planning vehicle.

Petitioner lists four ongoing or contemplated proceedings, all in Colombian courts in Bogotá, in which he proposes to use the requested discovery: 1) an ongoing probate proceeding regarding certain assets of the late Dr. Escallón; 2) a claim for an accounting against Patricia Ardila -- a respondent in the instant proceeding -- with regard to the J.P. Morgan Account, which was dismissed but which Petitioner explains he intends to re-file; 3) a criminal complaint against Petitioner related to his alleged mishandling of the corporate assets of El Zarzal, a family corporation formed under the laws of Colombia; and 4) a criminal complaint for perjury against the Ardilas which Petitioner states he intends to initiate (collectively, "the Colombian Proceedings").

The instant petition was filed in this Court on May 16, 2018. A conference was scheduled and Petitioner was ordered to serve his application and the scheduling order on respondents. Upon request from respondents' counsel, a briefing schedule was set and the conference was adjourned to August 24. The motion became fully submitted on August 17. Oral argument was held on August 24.

DISCUSSION

Petitioner seeks discovery of the Ardilas and Lucia Galarza in aid of the Colombian Proceedings. The Ardilas object that they are not "found in" nor do they "reside in" the Southern District of New York, and that the requested discovery is not "for use in" the Colombian Proceedings, as required by § 1782. They also ask that the Court exercise its discretion to deny the application under Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 124 S.Ct. 2466, 159 L.Ed.2d 355 (2004). Because the Ardilas are not "found in" and do not "reside in" the Southern District, and because the requested discovery is not "for use in" the Colombian Proceedings, the application must be denied on statutory grounds. Even if these statutory requirements were met, however, the application would be denied in an exercise of discretion based on a weighing of the Intel factors.

I. Section 1782 Statutory Requirements and Discretionary Factors

28 U.S.C. § 1782 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 ... for use in a proceeding in a foreign or international tribunal ... upon the application of any interested person." The Second Circuit has

summarized the statute as setting forth three requirements: that "(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 be for use in a proceeding before a foreign tribunal, and (3) the application be made by a foreign or international tribunal or any interested person."

Certain Funds, Accounts, and And/Or Inv. Vehicles v. KPMG LLP, 798 F.3d 113, 117 (2d Cir. 2015) (quoting Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76, 80 (2d Cir. 2012) ). The party seeking the discovery bears the burden of establishing that the statutory requirements are met. See id. at 118.

Once the statutory requirements are met, the district court may order discovery under § 1782 in its discretion, taking into consideration the "twin aims" of the statute, namely, "providing efficient means of assistance to participants in *556international litigation in our federal courts and encouraging foreign countries by example to provide similar means of assistance to our courts."

Id. at 117 (quoting In re Metallgesellschaft, 121 F.3d 77, 79 (2d Cir. 1997) ).

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Cite This Page — Counsel Stack

Bluebook (online)
323 F. Supp. 3d 552, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-lloreda-ilsd-2018.