Case of the Day: In re Application of Pott

The case of the day is In re Application of Pott (W.D. Wash. 2013). Pott was an Argentine businessman in the seafood business. He was the co-founder of Bentinicos de Argentina, a seafood company in Argentina, and he sold it to World Capital Properties, Ltd., a Florida firm, in order to get capital needed to keep the business afloat. Pott claimed that World Capital had defrauded him “by effectuating a sham sale of BDA to a newly created entity,” Acqua Holdings, LLC, “in order to deny him contractually obligated payments, profit sharing, and a commission on the sale.”

In 2011, Pott brought a criminal claim against World Capital and BDA in Argentina. The Argentine court dismissed the claim, and its decision was affirmed on appeal. Pott intended to pursue further appeals in the criminal case. Pott applied for issuance of a subpoena to Icicle Seafoods, Inc. under 28 U.S.C. § 1782. The judge granted the application, and Icicle objected to the subpoena. Potts moved to compel. BDA sought leave to intervene in order to move to quash the subpoena; the judge permitted BDA to intervene, and BDA made a motion to quash.

BDA’s argument was that the application under § 1782 had been improvidently granted because Pott was not seeking discovery “for use in a foreign proceeding.” BDA claimed that Pott had already exhausted his appellate rights in Argentina; but the judge found that Pott had a narrow window of opportunity left to appeal further, and that even if there was only a small chance that the Argentine Supreme Court would accept his appeal, that improbability was not enough to show that the criminal case was over. Therefore, the judge found that the discovery was “for use in” the Argentine proceeding.

In the remainder of the decision, the judge weighed the Intel factors. The factors favored Pott, and the judge therefore denied the motion to quash. Points of particular note: neither party was able to do more than speculate about whether the Argentine courts would be receptive to evidence gathered in the US; BDA’s arguments about burdensomeness were undercut by the fact that Pott and Icicle had worked together cooperatively to limit the scope of the subpoena.

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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