Pott v. ICICLE Seafoods, Inc.

Citations: 945 F. Supp. 2d 1197; 2013 WL 1855771; 2013 U.S. Dist. LEXIS 62502Docket: Case No. C13-332-RSM

Court: District Court, W.D. Washington; April 30, 2013; Federal District Court

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Alfred Carlos Pott filed a motion to compel the production of documents from Icicle Seafoods, Inc. as part of his application for judicial assistance under 28 U.S.C. § 1782, which pertains to obtaining evidence for use in foreign legal proceedings. Pott, an Argentine businessman, claims that Bentinicos de Argentina (BDA), a company he co-founded, was undervalued in a sale to Acqua Holdings, LLC, orchestrated under fraudulent pretenses by World Capital Properties, Ltd. (WCP). He has previously initiated criminal proceedings against WCP and BDA in Argentina, which have been dismissed and affirmed through multiple appeals, and he plans to pursue further legal action, including arbitration.

BDA filed a motion to quash the subpoena directed at Icicle, arguing that the initial application for the subpoena was improperly granted. The court, however, deferred Pott’s motion to compel and denied BDA’s motion to quash, while also striking BDA’s additional pending motion as moot. The court noted that Icicle has cooperated with Pott to narrow the requested discovery, but BDA has refused to engage in discussions regarding a protective order until its motion to quash is resolved.

The district court may grant judicial assistance requests if four statutory requirements are satisfied: 1) the request must originate from a foreign or international tribunal or an interested party; 2) it must seek testimony, statements, or the production of documents; 3) the evidence must be for use in a foreign or international proceeding; and 4) the individual subject to the request must reside in the district of the court. If these conditions are met, the court has discretion to grant the application, guided by four non-exclusive factors: 1) whether the discovery seeks information from a participant in the foreign proceeding; 2) the nature of the proceeding and the tribunal’s receptivity to the discovery; 3) whether the request circumvents foreign discovery policies; and 4) whether the request is overly burdensome or intrusive. The court also considers the objectives of § 1782, which are to facilitate international litigation assistance and encourage reciprocal support from foreign jurisdictions.

BDA argues that Pott's application does not meet the requirement that the discovery be for use in a foreign proceeding, asserting that Pott’s appellate rights are exhausted and thus the request is moot. Pott counters that he has not exhausted his appeal options, as he has a ten-day window from a specific dismissal to appeal, and intends to pursue further appeals in the Argentine legal system. The court finds that Pott’s ongoing criminal case qualifies as a foreign proceeding under § 1782.

BDA contests the application’s approval based on Intel factors two, three, and four, asserting they favor BDA. Factor one favors Pott since Icicle is not a party to the foreign action. For factor two, BDA claims the Argentine criminal court could have requested the evidence through a Mutual Legal Assistance Treaty, suggesting a lack of receptivity from the court. However, both parties provide only speculation regarding the receptivity of the Argentine courts to the evidence sought.

A foreign tribunal's hesitance to mandate production in the U.S. does not indicate resistance to evidence obtained under § 1782(a). Evaluation of the Argentine criminal process is insufficient to draw conclusions, leaving this factor neutral. The third Intel factor examines whether Pott's discovery request circumvents Argentine discovery rules. BDA argues that this factor is against Pott since he could have sought the evidence in Argentina or that he attempted such a request, which was denied, indicating an attempt to bypass Argentine restrictions. However, these claims are speculative. Pott asserts that BDA aims to avoid evidence production in Argentina and seeks information from Icicle, a third party, to support his claim that the BDA-Aqua transaction undervalued BDA. Pott requests evidence related to Icicle's valuation of BDA, which may provide information not accessible through BDA. BDA fails to show that Pott's requests circumvent Argentine rules. Since Pott seeks potentially contradicting evidence, this factor favors him.

Regarding the final Intel factor, BDA claims Pott's requests are burdensome and duplicative. BDA argues that Pott is on a "fishing expedition" and that he has already conducted discovery in Argentina. The Court finds BDA's burden argument unpersuasive, noting that Pott and Icicle have collaborated to limit the discovery's scope and that there is no associated expense for BDA. The Court lacks evidence to assess the nature of the evidence obtained in Argentina but recognizes that Icicle might possess relevant, unavailable evidence, favoring Pott. Consequently, Pott's application meets statutory requirements, and no discretionary factors support BDA, leading to the denial of BDA’s motion to quash the subpoena.

Pott's motion to compel is deferred due to Icicle's initial and supplemental objections, which remain unaddressed. The Court encourages the parties to negotiate a stipulated protective order by May 8, 2013. The order concludes with directives regarding motions, including the striking of BDA's emergency motion as moot and instructions for the Clerk to distribute the Order to all counsel. The Court refrains from determining if Pott’s potential pursuit of ICC arbitration meets the statutory foreign proceeding requirement.