Case of the Day: In re Application of Rigby

The case of the day is In re Application of Rigby (S.D. Cal. 2013). In 2009, an involuntary bankruptcy petition was filed concerning Michael R. Mastro. The bankruptcy judge found that Mastro and his wife had made false representations and had fraudulently transferred assets. He ordered their arrest. In 2012, they were arrested in France, and they were indicted the next day in the United States for bankruptcy fraud and money laundering. The bankruptcy trustee, James F. Rigby, obtained an order from a court in Annecy, France, authorizing the court to take possession of all documents and property in the Mastros’ home in France. Mastro, his wife, and his son, Michael K. Mastro, who resides in the Southern District of California, petitioned the French court for return of certain property.

Rigby applied to the US court for leave to issue a subpoena to Michael K. Mastro to take his deposition for use in the French litigation. The judge granted the application after a brief Intel analysis. Michael K. Mastro was a party to the French case, which weighs against the application. On the other hand, Rigby showed that the French court would be receptive to the evidence, and there was no apparent undue burden. The judge found that the circumvention of foreign proof-gathering factor didn’t point in either direction, but this was apparently just because Rigby hadn’t briefed the issue in enough detail.

The decision is perhaps most noteworthy for its conclusion:

The Court finds that applying the Intel factors does not clearly suggest how the Court should exercise its discretion in this case. But, considering that our courts generally favor discovery, the Court will authorize the issuance of the requested deposition subpoena.

That’s a perfect summary of the typical American judicial attitude towards discovery, I think.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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