In Re: Sharon Louise MacDonell ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 IN RE APPLICATION OF SHARON No. 2:20-cv-1332 KJM DB LOUISE MACDONELL, 12 Applicant 13 ORDER 14 15 16 17 On July 1, 2020, Sharon Louise MacDonell, (“Applicant”), filed an ex parte application to 18 issue subpoenas pursuant to 28 U.S.C. § 1782 in connection with an action pending in another 19 country. (ECF No. 1.) The matter has been referred to the undersigned pursuant to Local Rule 20 302(c)(1). For the reasons explained below, Applicant’s request is granted. 21 BACKGROUND 22 Applicant and Roger MacDonell were married in California on October 3, 1992. (Mem. P 23 & A (ECF No. 1) at 3.) After the couple and their four children moved to France, Roger 24 MacDonell initiated divorce proceedings in France on September 4, 2010. (Id.) During those 25 proceedings “the French Court and Applicant have been working to obtain information regarding 26 both” the relevant community assets and Roger MacDonell’s financial assets. (Id. at 4.) 27 “However, the French Court has found that, ‘Roger MacDonell displays a definite reluctance 28 //// 1 when it comes to explaining his actual resources and the income derived from his invested 2 capital.’” (Id. at 4.) 3 In December of 2017, Applicant filed an filed an ex parte application seeking the right to 4 serve third party subpoenas on Shipping Solutions, L.P., CGI Franchise System, Inc., Wells Fargo 5 Bank, N.A., and The Vanguard Group pursuant to 28 U.S.C. § 1782 in connection with the 6 French Court action.1 The magistrate judge assigned to that action granted that request in an 7 order filed on December 15, 2017. See In re Application of Sharon Louise MacDonell, No. 2:17- 8 mc-0189 TLN AC, 2017 WL 6448050, (E.D. Cal. Dec. 15, 2017). Applicant now seeks leave to 9 serve third party subpoenas again on Shipping Solutions, L.P., Wells Fargo Bank, N.A., and The 10 Vanguard Group, as wells as on Worldwide Express Holdings, LLC, because the information 11 obtained pursuant to the December 2017 order “is now out-of-date.”2 (Mem. P & A (ECF No. 1) 12 at 5.) 13 ANALYSIS 14 “If foreign tribunals and parties to their proceedings need evidence from third parties 15 located in the United States, they may take discovery of such evidence through a court-supervised 16 procedure enacted by Congress.” In re Ex Parte Application of Qualcomm Incorporated, 162 17 F.Supp.3d 1029, 1032 (N.D. Cal. 2016). Specifically, 28 U.S.C. § 1782 provides, in relevant 18 part: 19 (a) 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 20 a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted 21 before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international 22 tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or 23 other thing be produced, before a person appointed by the court. By virtue of his appointment, the person appointed has power to 24 administer any necessary oath and take the testimony or statement. 25 1 Roger MacDonell established both CGI Franchise Systems, Inc., and Shipping Solutions, LP. 26 (Mem. P & A (ECF No. 1) at 2.) 27 2 Worldwide Express Holdings, LLC, purchased CGI Franchise Systems, Inc., in August of 2007, 28 and Shipping Solutions, L.P. was sold to Worldwide Express Holdings, LLC in August of 2019. 1 The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or 2 the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order 3 does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with 4 the Federal Rules of Civil Procedure. 5 A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally 6 applicable privilege. 7 28 U.S.C. § 1782(a). 8 “The statute’s purpose is twofold: to ‘provid[e] efficient assistance to participants in 9 international litigation’ and to ‘encourag[e] foreign countries by example to provide similar 10 assistance to our courts.’” Akebia Therapeutics, Inc. v. FibroGen, Inc., 793 F.3d 1108, 1110 (9th 11 Cir. 2015) (quoting Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 252 (2004)). 12 “Section 1782’s statutory language has been distilled to permit district courts to authorize 13 discovery where three general requirements are satisfied: (1) the person from whom the discovery 14 is sought ‘resides or is found’ in the district of the district court where the application is made; (2) 15 the discovery is ‘for use in a proceeding in a foreign or international tribunal’; and (3) the 16 application is made by a foreign or international tribunal or ‘any interested person.’” Khrapunov 17 v. Prosyankin, 931 F.3d 922, 925 (9th Cir. 2019) (citing 28 U.S.C. § 1782(a)). 18 ANALYSIS 19 For the same reasons found by this court previously, the undersigned finds that “Applicant 20 has met the three statutory requirements of 28 U.S.C. § 1782.” In re MacDonell, 2017 WL 21 6448050, at *3. In this regard, Applicant has made a prima facie showing that Shipping 22 Solutions, L.P., Wells Fargo Bank, N.A., The Vanguard Group, and Worldwide Express 23 Holdings, LLC can be found in the Eastern District. (Mem. P & A (ECF No. 1) at 8.) The 24 discovery is sought in connection with a pending French Court divorce proceeding. And the 25 pending divorce proceedings in the French Court satisfy the requirement that Applicant be an 26 interested person. 27 “[E]ven where an applicant satisfies § 1782’s statutory prerequisites, the district court still 28 retains substantial discretion to permit or deny the requested discovery.” Khrapunov, 931 F.3d at 1 926. “The § 1782 discretionary factors include, primarily, whether ‘the person from whom 2 discovery is sought is a participant in the foreign proceeding’; ‘the nature of the foreign tribunal, 3 the character of the proceedings underway abroad, and the receptivity of the foreign government 4 or the court or agency abroad to U.S. federal-court judicial assistance’; whether the request 5 ‘conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a 6 foreign country or the United States’; and whether the request is ‘unduly intrusive or 7 burdensome.’” In re Premises Located at 840 140th Ave. NE, Bellevue, Wash., 634 F.3d 557, 8 571 (9th Cir. 2011) (quoting Intel, 542 U.S. at 264-65). 9 Here, the undersigned finds that the “discretionary factors weigh in favor of granting the 10 application[.]” In re MacDonell, 2017 WL 6448050, at *4. In this regard, French Courts are 11 receptive to mutual judicial cooperation in civil matters. Id. at 3. The applicant is not attempting 12 to circumvent foreign-proof gathering. To the contrary, Applicant is seeking evidence which may 13 not be accessible by other means to aid foreign-proof gathering. And review of the application 14 finds that the requests do not appear to be unduly intrusive or burdensome. 15 CONCLUSION 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. Applicant’s July 1, 2020, ex parte application to issue subpoenas pursuant to 28 U.S.C. 18 § 1782 is granted; 19 2. Applicant may issue subpoenas for documents consist with Applicant’s Exhibit A 20 (ECF No. 1-2) to Wells Fargo Bank, N.A, Worldwide Express, Inc., The Vanguard Group, and 21 Shipping Solutions, L.P.; 22 3. Wells Fargo Bank, N.A, Worldwide Express, Inc., The Vanguard Group, and Shipping 23 Solutions, L.P., shall produce the requested documents at the offices of Applicant’s counsel, 24 Farella Braun + Martel LLP, 235 Montgomery Street, 17th Floor, San Francisco, CA 94104; and 25 //// 26 //// 27 //// 28 //// 2 EUV □□□ OUND MMO Oo PO Ve TOY VI 1 4. Applicant shall serve a copy of this order on Wells Fargo Bank, N.A, Worldwide 2 | Express, Inc., The Vanguard Group, and Shipping Solutions, L.P. 3 | Dated: July 10, 2020 4 5 6 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 DLB:6 DB\orders\orders.civil\macdonell1332.forg.disc.ord 25 26 27 28