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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12922
Non-Argument Calendar
____________________
In re: EDUARDO GONZALEZ,
Pursuant to 28 U.S.C. 1782 For Judicial Assistance in
Obtaining Evidence for Use in Foreign International Proceedings,
Petitioner-Appellee,
versus
VERFRUCO FOODS, INC.,
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2 Opinion of the Court 21-12922
Respondent-Appellant,
VICTOR SEBASTIAN MAURICIO, et al.,
Respondents.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-mc-24628-DPG
____________________
Before ROSENBAUM, GRANT, and EDMONDSON, Circuit Judges.
PER CURIAM:
This appeal stems from an application for judicial assistance
under
28 U.S.C. § 1782. Eduardo Gonzalez filed ex parte a section
1782 application seeking discovery from Verfruco Foods, Inc.
(“Verfruco US”) for use in anticipated litigation in Mexico. The
district court granted Gonzalez’s application and ordered the issu-
ance of Gonzalez’s proposed subpoenas. The district court later
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21-12922 Opinion of the Court 3
denied Verfruco US’s motion to vacate and to quash the subpoe-
nas. No reversible error has been shown; we affirm.*
I.
Gonzalez is a Mexican engineer with expertise in processing
avocados. In 2007, Gonzalez and two Mexican businessmen -- Vic-
tor Sebastian-Mauricio and Jaime Sebastian-Mauricio (the “Broth-
ers”) --formed a new business entity focused on processing avoca-
dos and selling avocado pulp and guacamole in Mexico and inter-
nationally. The newly-created Mexican entity was called Verfruco
de Mexico, S. de R.L. de C.V. (“Verfruco Mexico”). Gonzalez re-
ceived an 8% equity interest in Verfruco Mexico. The Brothers re-
ceived a combined 35% ownership interest and became managers-
of-record for Verfruco Mexico, authorizing the Brothers to act on
behalf of the company under Mexican law.
In 2009, the Brothers established Verfruco US -- a United
States entity with its principal place of business in Coral Gables,
Florida -- to supply pulp and guacamole to a specific client based
* Verfruco US identifies three orders in its notice of appeal: (1) the district
court’s 17 November 2020 order granting Gonzalez’s section 1782 application;
(2) the magistrate judge’s 14 April 2021 order denying Verfruco US’s motion
to vacate and to quash the subpoenas; and (3) the district court’s 26 July 2021
order affirming the magistrate judge. Gonzalez contends that Verfruco US’s
notice of appeal (filed 24 August 2021) was untimely filed for the 17 November
2020 order. We need not decide that issue today. Because we affirm the denial
of Verfruco US’s motion to vacate the 17 November 2020 order, the underly-
ing order necessarily stands, regardless of whether it was timely appealed.
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4 Opinion of the Court 21-12922
within the United States. The Brothers obtained a 97% ownership
share in Verfruco US and provided Gonzalez with a 3% ownership
share.
By 2020, the overall Verfruco business had become a lucra-
tive operation, generating more than $50 million in annual reve-
nues.
According to Gonzalez, the Brothers have since frozen him
out of the business and have sought to deprive Gonzalez of his eq-
uity interest in Verfruco Mexico. Gonzalez contends that the
Brothers transferred Verfruco Mexico’s assets and clientele to other
companies owned or controlled (or both) by the Brothers, thus de-
pleting Verfruco Mexico of all value. The companies to which as-
sets were transferred include three Mexican entities: Freshcourt, S.
de R.L. de C.V. (“Freshcourt”), Novafoods, S. de R.L. de C.V. (“No-
vafoods”), and FI Avocados, S. de R.L. de C.V. (“FI Avocados”).
Gonzalez filed in the United States District Court for the
Southern District of Florida the section 1782 application underlying
this appeal. Gonzalez said he intends to initiate litigation in Mexico
against Verfruco Mexico, Freshcourt, Novafoods, and FI Avocados
(collectively, the “Mexican Companies”) to recover the value of his
8% ownership interest in Verfruco Mexico. In preparation for his
anticipated litigation in Mexican court, Gonzalez sought to obtain
from Verfruco US discovery about the purported fraudulent trans-
fer of assets.
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21-12922 Opinion of the Court 5
The district court granted Gonzalez’s application and or-
dered the Clerk of Court to issue the proposed subpoenas. The
district court ordered Verfruco US to provide deposition testimony
and to produce documents requested by subpoena that were
within its “possession, custody, and/or control.” The subpoenas
sought documentary and testimony evidence from Verfruco US on
(1) assets, revenues, and profits of the Mexican Companies; (2)
transfers of assets or cash from the Mexican Companies to the
Brothers or to companies owned and/or controlled by them; and
(3) evidence of Gonzalez’s ownership interest in the Mexican Com-
panies and efforts to deprive him of that interest.
Verfruco US moved to vacate the district court’s order and
to quash the subpoenas. A magistrate judge denied the motions.
Verfruco US objected to the magistrate judge’s ruling. The district
court overruled those objections and affirmed the magistrate
judge’s decision. This appeal followed.
II.
We review for abuse of discretion the district court’s rulings
on a section 1782 application, including the denial of a motion to
vacate a section 1782 order. See In re Clerici,
481 F.3d 1324, 1331
(11th Cir. 2007). We apply an “extremely limited and highly defer-
ential” standard “identical to that used in reviewing the district
court’s ordinary discovery rulings.” See
id. Under this abuse-of-
discretion standard, “we will leave undisturbed a district court’s
ruling unless we find that the district court has made a clear error
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6 Opinion of the Court 21-12922
of judgment, or has applied the wrong legal standard.” See Harri-
son v. Culliver,
746 F.3d 1288, 1297 (11th Cir. 2014).
A district court has authority under section 1782 to grant an
application for judicial assistance if these statutory requirements
are met: (1) the request is “made by a foreign or international tri-
bunal, or by any interested person”; (2) the request seeks testimo-
nial or documentary evidence; (3) the requested evidence is “for
use in a proceeding in a foreign or international tribunal; and (4)
the person from whom discovery is sought . . . reside[s] or [is]
found in the district of the district court ruling on the application
for assistance.”
Id. at 1331-32 (quotations omitted). That Gonzalez
satisfied these statutory criteria is undisputed.
If all four statutory requirements are met, the district court
may -- but is not required to -- grant relief under section 1782.
Id.
at 1332. In deciding whether relief is warranted, the district court
next considers the four discretionary factors articulated in Intel
Corp. v. Advanced Micro Devices, Inc.,
542 U.S. 241 (2004):
(1) whether the person from whom discovery
is sought is a participant in the foreign proceeding, . .
.;
(2) the nature of the foreign tribunal, the char-
acter of the proceedings underway abroad, and the
receptivity of the foreign government or the court or
agency abroad to U.S. federal-court judicial assis-
tance;
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21-12922 Opinion of the Court 7
(3) whether the § 1782(a) request conceals an
attempt to circumvent foreign proof-gathering re-
strictions or other policies of a foreign country or the
United States; and
(4) whether the request is otherwise unduly in-
trusive or burdensome.
See id. at 1334 (quotations omitted) (citing Intel,
542 U.S. at
264-65). Verfruco US raises no challenge to the district court’s de-
termination that the second and third Intel factors weigh in Gon-
zalez’s favor. Only the first and fourth factors are at issue in this
appeal.
A.
The magistrate judge determined that the first Intel factor
weighed in Gonzalez’s favor. The magistrate judge noted that
Gonzalez sought discovery from Verfruco US: a United States cor-
poration not subject to the jurisdiction of the Mexican courts and
“a nonparticipant in the prospective foreign proceeding.” Never
did Verfruco US object in the district court to the magistrate
judge’s findings or conclusions on the first Intel factor.
On appeal, Verfruco US now contends that the “true tar-
gets” of Gonzalez’s discovery requests are the Mexican Companies:
the intended defendants in the anticipated Mexican litigation. In
support of its argument, Verfruco US relies chiefly on events that
happened after the magistrate judge and the district court issued
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8 Opinion of the Court 21-12922
the orders underlying this appeal. Briefly stated, Verfruco US al-
leges that Gonzalez engaged in a “bait-and-switch” by expanding
the scope of his discovery requests after the district court granted
his section 1782 application and had affirmed the magistrate judge’s
order denying Verfruco US’s motion to vacate.
We will not consider this supposed new evidence on appeal.
See Selman v. Cobb Cty. Sch. Dist.,
449 F.3d 1320, 1332 (11th Cir.
2006) (“In deciding issues on appeal we consider only evidence that
was part of the record before the district court.”). The record that
was before the district court at the pertinent time supports the
magistrate judge’s determination that the first Intel factor favored
Gonzalez.
B.
About the fourth Intel factor, Verfruco US contends that
Gonzalez’s discovery requests are unduly burdensome for two rea-
sons: (1) because the requests seek evidence that “is within the ex-
clusive possession of” the Mexican Companies; and (2) because
Verfruco US supposedly lacks the requisite control over the Mexi-
can Companies to obtain the evidence.
Discovery authorized under section 1782 is to be produced
“in accordance with the Federal Rules of Civil Procedure.”
28
U.S.C. § 1782(a). Under Fed. R. Civ. P. 45, subpoenaed parties are
required to “produce designated documents, electronically stored
information, or tangible things in that person’s possession, custody,
or control.” See Fed. R. Civ. P. 45(a)(1)(A)(iii) (emphasis added).
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21-12922 Opinion of the Court 9
Rule 45 imposes no geographical limitation on the location of doc-
uments or information to be produced. See Sergeeva v. Tripleton
Int’l Ltd.,
834 F.3d 1194, 1200 (11th Cir. 2016). Thus, a subpoenaed
party can be required to “produce responsive documents and infor-
mation located outside the United States -- so long as [the party has]
possession, custody, or control of such responsive material.” See
id.
We have “broadly construed ‘control’ for purposes of dis-
covery as ‘the legal right to obtain the documents requested upon
demand.’” See
id. at 1201. A “legal right to obtain” does not require
actual possession or legal control. See
id. at 1201 n.6. Sufficient
“control” may be established for discovery purposes by showing
that “affiliated corporate entities . . . have actually shared respon-
sive information and documents in the normal course of their busi-
ness dealings.”
Id. at 1201.
Here, the magistrate judge determined that Verfruco US had
sufficient “control” within the meaning of Rule 45 over documents
within the physical possession of the Mexican Companies. Based
on unrebutted sworn statements in Gonzalez’s declaration, the
magistrate judge determined that Verfruco US and the four Mexi-
can Companies share a common ownership. The magistrate judge
also credited Gonzalez’s assertion that Verfruco US and the Mexi-
can Companies operate essentially as a single business group. In
doing so, the magistrate judge took judicial notice of the websites
for Verfruco US and Freshcourt: websites that evidenced overlap-
ping contact information, business addresses, and personnel
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10 Opinion of the Court 21-12922
between Verfruco US, Verfruco Mexico, and Freshcourt. Verfruco
US also registered in its own name the trademarks for Freshcourt
and for Verfruco Mexico.
In the light of the evidence of shared ownership and an in-
terrelationship between Verfruco US and the Mexican Companies,
the magistrate judge concluded that Gonzalez had demonstrated
sufficiently that Verfruco US had the requisite “control” over re-
quested documents within the physical possession or custody of
the Mexican Companies. In a similar way, the magistrate judge
concluded that Gonzalez’s discovery requests would result in no
undue burden, given the shared management and ownership be-
tween Verfruco US and the Mexican Companies.
On appeal, Verfruco US disputes the magistrate judge’s fac-
tual findings about the interrelationship between Verfruco US and
the Mexican Companies. The magistrate judge’s factual findings
are, however, supported by the undisputed record evidence then
before the magistrate judge. Nothing evidences that the magistrate
judge’s factual findings are clearly erroneous. We conclude that
the magistrate judge made no clear error of judgment in determin-
ing that Verfruco US exercised sufficient control over the requested
documents and that Gonzalez’s discovery requests stopped short
of being “unduly burdensome.”
Because the record supports the magistrate judge’s determi-
nation that all four Intel factors weighed in favor of Gonzalez, the
district court abused no discretion in affirming the magistrate
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21-12922 Opinion of the Court 11
judge’s denial of Verfruco US’s motion to vacate the order granting
Gonzalez’s application for judicial assistance under section 1782.
AFFIRMED.
