From Russia without Love
From Russia without Love
After dissolving their 16 year marriage, Anna Sergeeva, Appellee, and Mikhail Leopoldovich Dubin pursued a division of marital assets in Hoamvnischesky District Court of Moscow. Sergeeva v. Tripleton Int’l Ltd., No. 15-3008, 2016 WL 4435616, at *1 (11th Cir. Aug. 23, 2016). Ms. Sergeeva claimed that her ex-husband was concealing assets throughout the world in offshore companies. Id. Countries involved in the plaintiff’s search to locate marital assets include Cyprus, Latvia, Switzerland, the British Virgin Islands, the Commonwealth of the Bahamas, and the United States of America. Id.
In the United States, the plaintiff attempted to gain information from Trident Corporate Services, Inc., Appellant, believing Trident had information that would confirm the plaintiff’s ex-husband’s ownership interest in Tripleton International, a corporation in the Bahamas. Id. Plaintiff filed a § 1782 application for judicial assistance in Federal District Court in Atlanta, GA. Id. The Magistrate Judge granted the application and authorized service of two subpoenas, one to Trident. The subpoena to Trident required them to produce all documents that were in their control including documents from other “Trident Trust” entities located outside the United States. Id. Trident objected to the subpoena and filed motions to both vacate the order granting the subpoena and quash the subpoena itself. Id. The Magistrate Judge denied these motions. Trident produced 23 documents but was ultimately sanctioned and held in contempt for not complying with the subpoena. Id., at *2.
The issues on appeal were whether or not the District Court erred in affirming the subpoena requiring the production of documents under 28 U.S.C. § 1782, and if the District Court erred in imposing contempt sanctions on Trident Corporate Services, Inc. regarding their lack of cooperation with the subpoena authorized by the Magistrate Judge. The Eleventh Circuit affirmed the District Court on both counts. Id. at *6.
Appellant argued two main theories for how § 1782 should not be applied in the instant case. First, Appellant made an “extraterritoriality argument” that “documents located in foreign countries,” such as records of Tripleton International located in the Bahamas, were not included in § 1782. Id. at *3. This was an argument of first impression for the Eleventh Circuit. Id. at *4. The Court held that “the location of responsive documents … does not establish a per se bar to discovery under § 1782.” Id. The Court voiced agreement with the District Court that the question should be decided under the Federal Rules of Civil Procedure as required by § 1782. Federal Rule 45 “requires that subpoenaed parties ‘produce designated documents, electronically stored information, or tangible things in [the parties’] possession, custody, or control.’” Id. (quoting Fed. R. Civ. P. 45(a)(1)(A)(iii)). Additionally, the only geographical limitation proposed by Rule 45 is the act of production. Id. (citing Fed. R. Civ. P. 45(c)(2)(A)).
The Appellant’s second argument regarded the control requirement of Rule 45. Appellant argued that they did not have control over the documents requested in the subpoena. The Court held that the District Court was correct in relying on SeaRock v. Stripling, 736 F.2d 650, 653–54 (11th Cir. 1984), which defines control as “the legal right to obtain the documents requested upon demand.” Id. at *5. The Court also approved of the District Court’s reasoning that the legal right to obtain the documents could be established where affiliated companies have shared documents with one another through the “normal course of their business dealings.” Id. In the present case, the Court found that it would be unfeasible for Trident to operate without communicating with its subsidiaries around the globe, which would then put the documents in question under control of Trident for the purposes of Rule 45. Id.
The court also held that the District Court did not err in imposing sanctions and finding Trident in contempt noting that the record “evinced clear and convincing violations of the District Court’s many orders.” Id. at *6.
As stated previously, this decision marks an issue of first impression of the Eleventh Circuit regarding the application of Title 28, United States Code § 1782 to documents located in foreign countries. Id. at *4. The Court’s decision could be friendly to litigants from other countries that seek relevant discovery in the Unites States, or specifically within the Eleventh Circuit’s jurisdiction. The decision affirmed allowing a Russian citizen to compel discovery of an Atlanta Corporation, benefitting from the Federal Rules of Civil Procedure of the United States, to acquire documents concerning a sister corporation in the Commonwealth of the Bahamas. This decision is an interesting example of the growing globalization of litigation and, as long as it is a correct interpretation of the law, shows how the United States is willing to bear the extra burden on the Federal District Court docket to assist the judicial systems of foreign countries to adjudicate cases fairly and with full discovery. It should not be surprising that the United States is exporting its pro-discovery adjudication to other shores, and surely landlocked nations as well.
*Chris Collins is a member of the 2016-17 Editorial Board for Georgia Law Review