Pishevar v. Fusion Gps

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
IN RE APPLICATION OF SHERVIN PISHEVAR
FOR AN ORDER TO TAKE DISCOVERY FOR
Case No. 21-mc-105
USE IN FOREIGN PROCEEDINGS PURSUANT
TO 28 U.S.C. § 1782MEMORANDUM OPINION
Shervin Pishevar has asked this Court to issue two subpoenas to Bean LLC, also known as
Fusion GPS (“Fusion GPS”), for use in a foreign proceeding pursuant to 28 U.S.C. § 1782. For
the reasons that follow, Mr. Pishevar’s ex parte application is GRANTED.
BACKGROUND
Mr. Pishevar is an entrepreneur, venture capitalist, and investor who lives in San Francisco
and frequently travels to the United Kingdom. See Decl. of Jenny Campbell Afia ¶¶ 8, 13, ECF
No. 1-15 (“Afia Decl.”). He was arrested in May 2017 by City of London Police in connection
with a rape allegation. See id. ¶¶ 9, 13. Finding insufficient evidence to support the allegation,
police closed the investigation on July 28, 2017. See id. ¶ 11. Mr. Pishevar was never charged
with an offense related to the May 2017 arrest. See id.The incident nevertheless attracted media attention. In June 2017, Mr. Pishevar obtained
an injunction preventing UK newspaper the Sun from naming or identifying him in relation to the
arrest, on the basis that speculating about the arrest would have been a gross violation of Mr.
Pishevar’s privacy rights under UK law. See id. ¶ 12. In October 2017, reporter Marcus Baram
of Fast Company magazine contacted London Police to ask about a police report he had obtained
naming Mr. Pishevar. See id. ¶ 15. Mr. Baram obtained the report from an individual in
Washington, D.C., who represented that he had in turn obtained the report from a “male lawyer
based in the UK” (the “UK Source”). Id. ¶ 30. The UK Source also told Mr. Baram’s contact that
Mr. Pishevar had paid the rape complainant a large sum of money to drop the charges, and that
police were “outraged over the situation” and had demanded “a review of police procedures” in
light of the case. Id.; see also Afia Decl. Ex. 9, ECF No. 1-24.
The police report is a fake. See id. ¶ 17; Decl. of Lord Macdonald of River Glaven Kt QC
¶¶ 14–15, ECF No. 1-29 (“Macdonald Decl.”). The additional “information” shared by the UK
Source is false, as well. See Afia Decl. ¶¶ 20, 30. But Fast Company nonetheless published an
article about Mr. Pishevar based on the fake report and false information. See id. ¶ 20. Other
media outlets, including the NY Post and Forbes, followed suit, releasing articles in November
2017 that referred to the contents of the fake police report. See id. ¶ 21.
These events have led Mr. Pishevar to contemplate filing civil and criminal 1 charges in
England against the UK Source based on the Source’s dissemination of the fake police report and
false information. See id. ¶¶ 33–45; Macdonald Decl. ¶¶ 25–39. So far, Mr. Pishevar’s
investigations have revealed that Mr. Baram received the fake police report and false information
from D.C.-based investigations company Fusion GPS. See Afia Decl. ¶ 32. Pursuant to 28 U.S.C.
§ 1782, Mr. Pishevar now seeks documentary and testamentary subpoenas requiring Fusion GPS
to identify the UK Source, the client who hired Fusion GPS to investigate Mr. Pishevar, and related
information. See Ex. 2 to Decl. of Lucas Bento, ECF No. 1-3 (“Proposed Subpoenas”).
1
Under English and Welsh law, citizens may privately prosecute criminal charges without
involvement by police or the Crown Prosecution Service, the UK’s national prosecuting authority.
See Macdonald Decl. ¶¶ 3, 37.
LEGAL STANDARD
Section 1782 permits U.S. District Courts to provide evidence-gathering assistance for use
in foreign tribunals. See Intel Corp. v. Adv. Micro Devices, Inc., 542 U.S. 241, 247–49 (2004).
The assistance is available on an ex parte basis, In re Masters, 315 F. Supp. 3d 269, 272 (D.D.C.
2018), so long as the court is “authorized to grant the request” and “exercise[s] its discretion to do
so.” In re DiGiulian, 314 F. Supp. 3d 1, 6 (D.D.C. 2018) (quoting Norex Petroleum Ltd. v. Chubb
Ins. Co. of Canada, 384 F. Supp. 2d 45, 49 (D.D.C. 2005)). Absent a court order to the contrary,
the discovery permitted must be conducted “in accordance with the Federal Rules of Civil
Procedure.” Id. (quoting 28 U.S.C. § 1782(a)).
DISCUSSION
I. The Court’s Authority
This Court is authorized to grant Mr. Pishevar’s Section 1782 request. Authority to grant
the request turns on three statutory criteria: (1) the person from whom discovery is sought must
“reside in or be found within” the district; (2) the discovery must be “for use in” a “proceeding”
before a foreign or international tribunal; and (3) the application must be “made by a foreign or
international tribunal or any interested person.” DiGiulian, 314 F. Supp. 3d at 6. 2
The first element is satisfied here because Fusion GPS—the target of Mr. Pishevar’s
requested subpoenas—is headquartered in the District of Columbia. See Decl. of Lucas Bento ¶¶
2
This Court has sometimes articulated the mandatory § 1782 criteria as a four-part test.
See In re de Leon, No. 19-mc-197-TSC, 2020 WL 1047742, at *2 (D.D.C. Mar. 4, 2020). The
same showings are required under either construction. In the three-prong test used here, the second
element requires that the discovery be “for use in” a “proceeding” before a foreign or international
tribunal. DiGiulian, 314 F. Supp. 3d at 6. The proceeding need not be pending, but it must be
“reasonably contemplated.” See id. In the four-prong test used in de Leon, the “reasonably
contemplated” rule is separated from the “for use” issue, possibly for added emphasis. See de
Leon, 2020 WL 1047742 at *2 (quoting Intel, 542 U.S. at 259)).
5–6, ECF No. 1-1 (“Bento Decl.”); Bento Decl. Exs. 3, 4, 13, ECF Nos. 1-4, 1-5, and 1-14
(showing Fusion GPS is a trade name for Bean LLC, a Delaware business “based in Washington,
DC”). A corporation is “found within” the district where it is headquartered or incorporated. See
Masters, 315 F. Supp. 3d at 274–75 (collecting cases). Common principles of personal jurisdiction
inform this analysis. See id. (quoting In re Application of Thai-Lao Lignite (Thailand) Co., 821 F.
Supp. 2d 289, 294 n.4, for the principle that personal jurisdiction and § 1782’s “found within”
requirement “overlap considerably”); see also de Leon, 2020 WL 1047742 at *2 (adopting similar
reasoning from the Second Circuit). Fusion GPS’s characterization of its business as “based in
Washington DC” is enough to satisfy this Court that the company is headquartered here. Bento
Decl. Ex. 13, ECF No. 1-14.
Mr. Pishevar has also satisfied the second mandatory Section 1782 element. He seeks
information and documents from Fusion GPS to use as evidence in an English lawsuit. See Afia
Decl. ¶¶ 33–45; Macdonald Decl. ¶¶ 25–39. He has not yet filed suit, though he has retained UK
and English law firms to advise him on and pursue available claims. See Afia Decl. ¶¶ 22, 34;
Macdonald Decl. ¶ 25. Section 1782 does not require foreign proceedings to be “pending” or
“imminent,” so courts may authorize discovery “provided that the foreign proceedings are ‘within
reasonable contemplation’ when the request for judicial assistance is filed.” DiGiulian, 314 F.
Supp. 3d at 6 (quoting Intel, 542 U.S. at 259). Mr. Pishevar clearly contemplates filing suit in a
foreign tribunal. The affidavits filed in support of his request detail several legal theories that
might permit Mr. Pishevar to recover from the UK Source. See Afia Decl. ¶¶ 33–45; Macdonald
Decl. ¶¶ 25–39. The information and documents sought from Fusion GPS are also “for use” in
these contemplated proceedings because the identity of the UK Source is instrumental to pursuing
Mr. Pishevar’s claims. See Afia Decl. ¶¶ 47–49; Macdonald Decl. ¶¶ 40–41.
Third, Mr. Pishevar is an “interested person” within the meaning of Section 1782. An
individual who “intends to initiate proceedings” in a foreign tribunal satisfies this third statutory
requirement. Att’y Gen. of Brit. Virgin Islands v. Hyman, No. 19-mc-164-RCL, 2020 WL
2615519, at *6 (D.D.C. May 23, 2020). So does a “complainant” in a potential criminal matter
who has “‘a right to submit information’ and who ‘possess[es] a reasonable interest in obtaining
judicial assistance.’” Lazaridis v. Int’l Ctr. for Missing & Exploited Child., Inc., 760 F. Supp. 2d
109, 113 (D.D.C. 2011), aff’d, 473 F. App’x 2 (D.C. Cir. 2012) (quoting Intel, 542 U.S. at 256)
(modification from quoted source omitted). Mr. Pishevar’s request therefore satisfies all of the
mandatory criteria, giving this Court authority to grant the application.
II. The Court’s Discretion
The Court must next decide whether to exercise its discretion to grant Mr. Pishevar’s
request. See DiGiulian, 314 F. Supp. 3d at 5–6 (noting that a court is “not required to grant a
§ 1782(a) discovery application simply because it has the authority to do so”). The decision is
guided by the statute’s “twin aims” of providing “efficient assistance to participants in
international litigation and encouraging foreign countries by example to provide similar assistance
to our courts.” Lazaridis, 760 F. Supp. 2d at 114; DiGiulian, 314 F. Supp. at 7. Four factors “bear
consideration” as part of this analysis:
(1) whether ‘the person from whom discovery is sought is a participant in the
foreign proceeding,’ because if so ‘the need for § 1782(a) aid generally is not as
apparent as it ordinarily is when evidence is sought from a nonparticipant in the
matter arising abroad;’
(2) ‘the nature of the foreign tribunal, the character of the proceedings underway
abroad, and the receptivity of the . . . court . . . abroad to U.S. federal-court judicial
assistance;’
(3) ‘whether the § 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 ‘unduly intrusive or burdensome.’
Id. at 7 (quoting Intel, 542 U.S. at 264–65). Weighing these factors is not required, and the
Supreme Court has not articulated “a formula for their consideration.” Id. (internal quotation
omitted). This Court nevertheless routinely relies on the Intel factors to evaluate Section 1782
requests. See id.; Norex Petroleum Ltd., 384 F. Supp. 2d at 49; Lazaridis, 760 F. Supp. 2d at 114.
The first factor weighs in favor of granting Mr. Pishevar’s request. He seeks subpoenas
addressed to a “nonparticipant in the matter arising abroad,” because the requested subpoenas are
directed at Fusion GPS, but Mr. Pishevar does not plan to sue Fusion GPS in the English courts.
Mr. Pishevar plans to pursue his claims against the UK Source. See Afia Decl. ¶¶ 34, 44–45;
Macdonald Decl. ¶ 27. His request is aimed at Fusion GPS because the investigations company
appears to be the best source of information on the identity of the UK Source—the individual or
individuals who will ultimately become the “participant[s] in the foreign proceeding.” Afia Decl.
¶ 32; Macdonald Decl. ¶ 40.
The second factor also weighs in favor of granting Mr. Pishevar’s request. This factor
considers the nature of the foreign tribunal, the character of the proceedings, and the receptivity of
the foreign court to U.S. judicial assistance. DiGiulian, 314 F. Supp. 3d at 7. The nature of the
English court system or the civil and criminal proceedings contemplated there raise no concerns
in this U.S. court. Courts in the United States also presume that foreign tribunals will be receptive
to evidence obtained here, and ordinarily consider “only authoritative proof that a foreign tribunal
would reject evidence obtained with the aid of section 1782.” Id. at 8 (citing In re Caratube, 730
F. Supp. 2d 101, 106–06 (D.D.C. 2010); In re Barnwell Enters. Ltd., 265 F. Supp. 3d 1, 10–11
(D.D.C. 2017)). No such proof has been offered in this case. Mr. Pishevar’s UK and English
counsel also believe the English courts will be receptive to the evidence he seeks in this Section
1782 petition. See Afia Decl. ¶¶ 51–54; Macdonald Decl. ¶¶ 42–47.
The third Intel factor also weighs in Mr. Pishevar’s favor. Nothing in the record indicates
that Mr. Pishevar is seeking discovery here via Section 1782 to circumvent the proof-gathering
rules or policies of either this Court or the courts of England. See DiGiulian, 314 F. Supp. 3d at 9
(evaluating this factor on lack of evidence in the record); In re Veiga, 746 F. Supp. 2d 8, 25 (D.D.C.
2010) (same).
The last Intel factor does not weigh against Mr. Pishevar. Under the fourth factor, courts
must consider whether the Section 1782 discovery request is “unduly intrusive or burdensome.”
Intel, 542 U.S. at 265. The standard in this context is substantially the same as under the Federal
Rules of Civil Procedure. See, e.g., DiGiulian, 314 F. Supp. 3d at 9 (incorporating relevance
considerations); de Leon, 2020 WL 1047742, at *3 (same); Barnwell Enters., 265 F. Supp. 3d at
13–14 (incorporating burdensomeness balancing considerations, including the effect of temporal
and subject-matter restrictions); Veiga, 746 F. Supp. 2d at 25 (concluding that Section 1782 request
was “reasonably tailored” to the “claims and defenses raised in the proceedings at issue”). Mr.
Pishevar’s proposed subpoenas appear appropriately tailored to the English proceedings he is
contemplating against the UK Source. See Proposed Subpoenas. Additionally, because the
Federal Rules of Civil Procedure apply to a subpoena issued under Section 1782, Fusion GPS will
have an opportunity to object to the subpoena on burdensomeness and related grounds under Rule
45(d). See 28 U.S.C. § 1782(a); de Leon, 2020 WL 1047742, at *1. If the subpoenas are unduly
burdensome, then, they may still be quashed on motion from Fusion GPS. See Fed. R. Civ. P.
45(d)(3)(A)(iv).
CONCLUSION
Accordingly, because this Court has authority to grant Mr. Pishevar’s § 1782 request and
the discretionary Intel factors weigh in favor of doing so, Mr. Pishevar’s Ex Parte Application
and Petition for an Order to Conduct Discovery for Use in Foreign Proceedings Pursuant to 28
U.S.C. § 1782, ECF No. 1, is GRANTED. A corresponding order will issue separately.
Dated: February 17, 2023
ROBIN M. MERIWEATHER
UNITED STATES MAGISTRATE JUDGE