Case of the Day: In re Application of Pinchuk

The case of the day is In re Application of Pinchuk (S.D. Fla. 2013). Victor Mikhaylovich Pinchuk was the claimant in an LCIA arbitration against Igor Valeryevich Kolomoisky and Gennadiy Borisovich Bogolyubov. The three had been joint venturers in the ferroalloy business. Pinchuk sought to take discovery under 28 U.S.C. § 1782 from several third parties supposedly controlled by Kolomoisky and Bogolyubov, namely Georgian American Alloys, Inc., Felman Production, Felman Trading, and Mordechai Korf. The judge granted the motion in a short decision.

There are only two points of interest in the decision. First, the judge followed what I think is the majority rule and held that the private arbitral tribunal was a tribunal within the scope of the statute. Readers should refer to S.I. Strong’s paper on this issue. Second, the judge considered the statutory prerequisites for application of § 1782 but not the discretionary Intel factors. I think courts should always consider the discretionary factors, or at least indicate that they are aware that they exist. As a practical matter, courts sometimes defer consideration of the Intel factors until the target of the discovery comes into the case; but at the ex parte application stage of a § 1782 case, I think it would still be better at least to refer to the Intel factors.

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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