The case of the day is In re Application of Leret (D.D.C. 2013). Patrick Roger Leret and Luis Ernesto Gonzales sought leave under 28 U.S.C. § 1782 to serve a subpoena on Alvaro Roche Cisneros. Leret and Gonzales said the discovery they sought was for use in three actions pending in Venezuela, which in summary involved a dispute among the shareholders of Grupo Los Principitos, a Venezuelan corporation.

The judge found that the statutory prerequisites had been satisfied. But he refused the application. The procedure was unusual insofar as the judge did not rule on the application ex parte but instead issued an order to show cause. In response, Roche stipulated that he would “submit to the Venezuelan courts in the Venezuelan Actions for discovery consistent with Venezuelan procedures, and to be subject to the same discovery in the Venezuelan Actions as any party resident in Venezuela who appears before that country’s courts.” This impressed the judge, who denied the application.

This decision is probably permissible, but I think it unwise. Roche has agreed to submit himself to the jurisdiction of the Venezuelan courts and to provide discovery consistent with Venezuelan procedures, but what if (as I assume to be the case) Venezuelan law provides a narrower scope for discovery than US law? In the absence of any evidence that the Venezuelan court would disapprove of attempts to gather evidence in the US (the court expressly left such questions to the side), I think it’s contrary to the policy of the statute to refuse to make US discovery processes available on the grounds that narrower foreign processes are available.