Lazaridis v. International Centre for Missing and Exploited Children, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
EMMANUEL N. LAZARIDIS, )
)
Petitioner, )
)
v. ) Misc. Action No. 10-0353 (RMC)
)
INTERNATIONAL CENTRE FOR MISSING )
AND EXPLOITED CHILDREN, INC. et al., )
)
Respondents. )
MEMORANDUM OPINION
In an application for discovery pursuant to 28 U.S.C. § 1782, the petitioner,
Emmanuel N. Lazaridis, seeks six categories of documents – some spanning eight years – from
the International Centre for Missing and Exploited Children (“ICMEC”) and the National Center
for Missing and Exploited Children (“NCMEC”). See Ex Parte Application for Discovery
Pursuant to 28 U.S.C. § 1782 (“App.”) [Dkt. # 1] at 38-39.1 The Respondents, ICMEC and
NCMEC, assert that Mr. Lazaridis has not satisfied the statutory requirements for discovery
assistance but, if the Court finds otherwise, that the application should be denied. See generally
Mem. in Opp’n to App. for Discovery Under 28 U.S.C. § 1782 (“Opp’n”) [Dkt. # 9]. For the
following reasons, the Court will deny Mr. Lazaridis’ application.
I. BACKGROUND
Mr. Lazaridis claims to be an interested party in a criminal prosecution against
Ernie Allen and numerous other individuals pending before the Three-Member Magistrates Court
1
Because the 99-page application is not sequentially numbered throughout, the Court
will cite the page numbers assigned to the electronic docket.
of Athens, Greece (“TMMCA”), and in a “penal investigation” of those same individuals by the
First Instance Prosecutor of the Hellenic Republic (“FIP”) and the Electronic Crimes Unit of the
Hellenic Police (“ECU”). App. at 2. He seeks “to assist” the TMMCA and the two Greek
investigative authorities by obtaining records from ICMEC and NCMEC “concerning cases of
children who are or have been falsely advertised as though they were missing.” Id. at 3. Mr.
Lazaridis alleges that he is “the complainaint before the FIP and the ECU and a civil party to
[the] criminal proceedings” before the TMMCA. Id. at 6, ¶ 4. He claims that the “penal
proceedings [were] scheduled for December 2010,” id. at 1, and that “[t]he FIP and ECU
investigations into the Defendants’ punishable acts or omissions dating from January 1, 2002 to
the present are ongoing.” Id. at 3.
II. ANALYSIS
Section 1782 authorizes the district court, in its discretion, to “order [a person
within its reach] to give his testimony or statement or to produce a document or other thing for
use in a proceeding in a foreign or international tribunal, including criminal investigations
conducted before formal accusation.”2 28 U.S.C. § 1782(a). “[A] district court is not required to
grant a § 1782(a) discovery application simply because it has the authority to do so,” however.
Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264 (2004) (citation omitted). In
addressing a discovery application, the Court considers first whether it has the authority to grant
the request and then whether it should exercise its discretion to do so. Norex v. Petroleum Ltd. v.
Chubb Ins. Co. of Canada, 384 F. Supp. 2d 45, 49 (D.D.C. 2005) (citing Intel Corp., 542 U.S. at
264).
2
“Person” encompasses “corporations, companies [and] associations.” Linder v.
Calero-Portocarrero, 251 F.3d 178, 181 (D.C. Cir. 2001) (quoting 1 U.S.C. § 1).
2
1. The Court’s Authority
In determining its authority to grant a discovery request under § 1782, the Court
considers:
(1) whether the person from whom discovery is sought resides or is found in the
district where the action has been filed, (2) whether the discovery sought is for use
in a proceeding before a foreign or international tribunal, and (3) whether the
application is made by a foreign or international tribunal or “any interested person.”
Id. (citing Schmitz v. Bernstein Liebhard & Lifshitz, LLP, 376 F.3d 79, 83 (2d Cir. 2004)). It is
not disputed that NCMEC and ICMEC may be found in the District of Columbia. See Opp’n at
8.
As for the second factor, the Greek prosecution obviously satisfies the foreign
tribunal requirement. However, the Respondents assert that “[m]ost of Mr. Lazaridis’s discovery
requests have nothing to do with the Greek Prosecution,” id. at 9, and that Mr. Lazaridis has not
shown the existence of a foreign proceeding with regard to the Greek investigation or one that is
“within reasonable contemplation.” Id. at 8 (quoting Intel Corp., 542 U.S. at 259). But a foreign
proceeding includes “criminal investigations conducted before formal accusation,” 28 U.S.C.
§ 1782(a), and the Supreme Court has made clear that an adjudicative proceeding need be neither
pending nor imminent “for an applicant to invoke § 1782(a) successfully[.]” Intel Corp., 542
U.S. at 253-54.
The Respondents accept that Mr. Lazaridis’ production of two summonses issued
for him to appear before a Greek magistrate judge shows that a preliminary investigation is
underway in Greece. See Surreply in Opp’n to App. for Discovery Under 28 U.S.C. § 1782 [Dkt.
# 12] at 2. They nevertheless maintain that the summonses “do not establish that a foreign
proceeding is within reasonable contemplation.” Id. The Respondents’ reliance on the phrase
3
“reasonable contemplation” ignores the narrow context – proceedings before the European
Commission – in which the phrase was used. See Intel Corp., 542 U.S.C. at 259 (“[W]e hold
that § 1782(a) requires only that a dispositive ruling by the Commission, reviewable by the
European courts be within reasonable contemplation.”) (citations omitted). In interpreting the
statutory text applicable to this case, the Supreme Court stated:
In 1996, Congress amended § 1782(a) to clarify that the statute covers “criminal
investigations conducted before formal accusation.”. . . Nothing suggests that this
amendment was an endeavor to rein in, rather than to confirm, by way of example,
the broad range of discovery authorized in 1964. See S.Rep. No. 1580, at 7, U.S.
Code Cong. & Admin. News 1964, pp. 3782, 3788 (“[T]he [district] court[s] have
discretion to grant assistance when proceedings are pending before investigating
magistrates in foreign countries.”).
Id. A Greek investigation conducted by a magistrate falls squarely within the Supreme Court’s
interpretation of the type of pre-accusatory proceeding Congress had contemplated. The second
requirement that the discovery be sought for use before a foreign tribunal therefore is satisfied.
With regard to the third factor, the phrase “any interested person” is also
interpreted broadly and may encompass those who “prompt[] an investigation,” i.e., a
complainant, who "have a right to submit information" and who "possess a reasonable interest in
obtaining [judicial] assistance." Intel, 254 U.S. at 256 (finding the complainant in a European
Commission investigation to be an interested person). Mr. Lazaridis claims that he is “a
complainant in both the Greek Prosecution and the Greek Investigation [and that] [h]e has the
right to submit information for consideration by the FIP, ECU and TMMCA.” App. at 13. He
further claims that he has “the right to request relief from the TMMCA as a victim of the
prosecuted crime, and a limited right to appeal its judgment.” Id.
4
The Respondents do not substantially dispute that Mr. Lazaridis is an interested
person in the Greek investigation. However, they have provided a sworn statement that calls into
question Mr. Lazaridis’ claim that he is an interested party in the Greek prosecution. According
to a practicing attorney in Greece who also lectures on criminal law and procedure there, the
Public Prosecutor is in charge of criminal investigations and prosecutions and, at his or her
discretion, “can easily use a well-established mechanism of Mutual Legal Assistance” to obtain
needed documents “from a legal person or authority in the United States.” Opp’n, Ex. A., Aff. of
Anastasious S. Triantafillou [Dkt. # 9-1] ¶ 7. The governing Treaty between the United States
and Greece “does not give the right to any private person to obtain evidence” and “[a] person
who files a complaint with the Public Prosecutor cannot independently make a request to the
Central Authority to collect evidence for the court.” Id. ¶ 12. Furthermore, “a private citizen
who files a criminal complaint cannot appeal against a decision acquitting the defendant.” Id. ¶
23.
Mr. Lazaridis counters with an “excerpt” of an article, “The Criminal Justice
System of Greece,” purportedly written in October 1999 by two then-professors on the law
faculty at the University of Athens. Reply to Mem. in Opp’n to App. for Discovery Under 28
U.S.C. § 1782 (“Pl.’s Reply”), Ex. A [Dkt. # 10-1]. Assuming, without deciding, that the excerpt
is authentic, the Court cannot rely on such an outdated document to determine the current state of
the Greek justice system. In any event, the excerpt would not buttress Mr. Lazaridis’ position.
According to the excerpt, a crime victim “may acquire an active role” in the criminal proceedings
by “declaring that he [] participates in the proceedings as a civil claimant demanding either
indemnity for material damages or compensation for moral damage or pain and suffering.” Id. at
2. Such a declaration may be made at the pre-trial stage “usually by an express statement . . . or
5
in another official form” or “at the trial proceedings before the taking of evidence begins.” Id.Mr. Lazaridis has provided no documentation of his compliance with this process.
Although Mr. Lazaridis may not be an interested party in the Greek prosecution,
he has for the most part satisfied the statutory requirements for this Court to conclude that it has
the authority to permit discovery under § 1782, at least with respect to the Greek investigation.
As discussed next, the Court, in its discretion, will deny Mr. Lazaridis’ application.
2. The Court’s Discretion
The district court must exercise its discretion in light of the twin aims of the
statute to (1) provide efficient means of assistance to participants in international litigation and
(2) encourage foreign countries by example to provide similar means of assistance to our courts.
Norex, 348 F. Supp. 2d at 49. To this end, the Court considers several factors. First is whether
the Respondents are “participant[s] in the foreign proceeding,” which, if they are, would weigh
against granting the application because presumably the foreign tribunal would have jurisdiction
to order those appearing before it to produce evidence. Intel Corp., 542 U.S. at 264. Second, the
Court “may take into account the nature of the foreign tribunal, the character of the proceedings
underway abroad, [] the receptivity of the foreign government or the court or agency abroad to
U.S. federal-court judicial assistance,” and whether the request “conceals an attempt to
circumvent foreign proof-gathering restrictions or other policies of a foreign country or the
United States.” Id. Third, the Court may consider the intrusiveness or burdensome nature of the
requests. Id. at 265.
The first consideration weighs against granting the application. The Respondents
are necessarily participants in the Greek prosecution because the lead defendant, Ernie Allen, is
6
the president of NCMEC.3 Thus, the Respondents argue convincingly that “there is no indication
that Mr. Allen lacks sufficient access to information held by [those organizations] if requested by
the authorities in Greece.”4 Opp’n at 13. Mr. Lazaridis asserts that the Respondents are “non-
parties to the Greek Investigation,” App. at 4, but this is inconsequential because “[i]n the
preliminary inquiry there is technically no defendant, since no formal criminal proceedings are
opened, but merely ‘suspects’ who may later . . . become defendants” if a prosecution is
commenced. Triantafillou Aff. ¶ 3.
The nature of the investigative proceedings also weighs against granting the
application. Mr. Lazaridis describes the Greek investigation as “penal,” App. at 2, and claims
that the records he seeks “are directly relevant to establishing the criminal liability of the
Defendants with respect to the publication of posters and statements concerning children who are
falsely being advertised as though they were missing.” Id. at 4. A preliminary inquiry of
potential criminal activity in Greece is conducted by the Public Prosecutor, who “may order the
investigating officers [,including] Investigating Magistrates . . . to carry out specific acts
(examination of witnesses, etc.) within their competence.” Triantafillou Aff. ¶ 6. To obtain
documents from the United States deemed relevant to the investigation, the Public Prosecutor
may utilize § 1782 by issuing a letter rogatory or the “well-established mechanism of Mutual
Legal Assistance.” Triantafillou Aff. ¶ 7; see id. ¶¶ 8-14 (describing the Treaty on Mutual Legal
3
Mr. Allen and other individuals are on trial for allegedly “spread[ing] . . . false facts
[about Mr. Lazaridis] with the use of the websites in the internet of their companies” between
September 2004 and October 2005. App. Attach., Writ of Summons at 66-67. The Respondents
state that NCMEC representatives and counsel have been present at each scheduled hearing in
the Greek Prosecution since it was initiated in July 2008.” Opp’n at 13.
4
Mr. Lazaridis argues the contrary but yet he refers to Mr. Allen’s “written testimony”
when trying to explain his definition of “Not-Missing Children” that he alleges appear on
NCMEC’s website. Reply at 10, n.4.
7
Assistance between Greece and the United States). The Public Prosecutor and the Greek Court
have “sole discretion” to seek assistance under the Treaty. Id. ¶ 12. Thus, the Respondents
reasonably surmise that neither the Greek prosecutor nor the Greek court needs Mr. Lazaridis’
assistance in gathering evidence. Opp’n at 15. In addition, the Respondents assert that Mr.
Lazaridis has not shown that the Greek authorities are even “aware of or receptive to his efforts
to get discovery from [them].” Id. Mr. Lazaridis replies that he “personally informed the
investigating magistrate of the present Application [and] [n]o objections have been registered by
the Greek authorities . . . .” Reply at 13. He has provided no documentation of when, how and
to whom he provided said notice, but mere inaction by the Greek authorities does not translate
into their agreement or consent. In any event, Mr. Lazaridis is seeking discovery allegedly for
use in the investigation of criminal activity. The Respondents’ declaration demonstrates that
similar to the United States’ justice system, such investigations are left to the discretion of the
Greek authorities and provide no private right of action. The Court therefore fails to see how the
twin aims of § 1782 would be furthered by granting Mr. Lazaridis’ application.
Finally, the nature of the request weighs against granting the application. Mr.
Lazaridis seeks the Respondents’ production of the following six categories of documents.
(1) All documents concerning the Applicant; (2) All documents created or
obtained by the organizations between January 1, 2002 and May 1, 2010 concerning
each Not-Missing Child who appeared in any document which you published,
distributed, disseminated or permitted to be published . . . for at least one month
after you or any of your corporate affiliates or members obtained evidence that the
said child was a Not-Missing Child; (3) All documents concerning the access of the
Defendants to any of your documents concerning any Not-Missing Child; (4) All
documents concerning your policies, rules, instructions or criteria concerning the
publication, distribution, dissemination, maintenance or storage of documents
regarding Not-Missing Children; (5) All documents concerning your European
affiliates or members; (6) All documents concerning your transactions with the
Defendants between January 1, 2002 and May 1, 2010.
App. at 38-39; 48-49. This wide-ranging request suggests that Mr. Lazaridis is seeking
8
information more for his general use than for use by the Greek tribunals in their investigation or
prosecution of specific criminal acts.5 The Respondents reasonably contend that Mr. Lazaridis’
requests would impose an undue burden on them and they correctly assert that his “invented”
term – “Not-Missing Child” – is “vague and would appear to require [them] to reach legal and
even potentially judicial conclusions, which they cannot do.” 6 Opp’n at 16. After all, the
Respondents serve as clearinghouses of information obtained from other sources, see Lazaridis v.
Dep’t of Justice, No., 09-cv-1177, Memorandum Opinion of May 32, 2010 [Dkt. # 38] at 6-7,
and do not themselves determine “whether a child is missing or a court order has been violated.”
Opp’n at 16.
III. CONCLUSION
For the foregoing reasons, the Court finds that it is authorized under 28 U.S.C.
§ 1782 to grant Mr. Lazaridis’ application for discovery with respect to the Greek investigation
5
Mr. Lazaridis has not credibly shown, for example, how “all” documents the
Respondents have about him or “all” documents about the Respondents’ European “affiliates or
members” would aid the Greek authorities in the criminal investigation of “falsely advertised”
missing children. App. at 3. Section 1782 is not a device for fishing expeditions.
6
Mr. Lazaridis defines “Not-Missing Child” as
an individual less than 18 years of age who is not associated with
an entry in the National Crime Information Center [] database
specifying that the said individual disappeared and that his or her
whereabouts are unknown, or who does not fit within the definition
of ‘missing child’ pursuant to federal law . . ., or who is in the legal
custody, pursuant to a foreign court order, of a person located
outside the United States.
App. at 37. His subsequent effort to explain this definition, see Reply at 10, n.4, only reinforces
the vagueness of the request, and the Court declines Mr. Lazaridis’ invitation to consider an
“alternative definition.” Id.9
but, in its discretion, declines to do so. A memorializing order accompanies this Memorandum
Opinion.
Date: January 20, 2011 /s/
ROSEMARY M. COLLYER
United States District Judge
10
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
EMMANUEL N. LAZARIDIS, )
)
Petitioner, )
)
v. ) Misc. Action No. 10-0353 (RMC)
)
INTERNATIONAL CENTRE FOR MISSING )
AND EXPLOITED CHILDREN, INC. et al., )
)
Respondents. )
ORDER
For the reasons stated in the Memorandum Opinion filed simultaneously with this
Order, it is hereby
ORDERED that Mr. Lazaridis’ Ex Parte Application for Discovery Pursuant to
28 U.S.C. § 1782 [Dkt. # 1] is DENIED; accordingly, this case is closed.
This is a final appealable Order. See Fed. R. App. P. 4(a).
SO ORDERED.
Date: January 20, 2011 /s/
ROSEMARY M. COLLYER
United States District Judge