Case of the Day: In re Application of Pinchuk

The case of the day is In re Application of Pinchuk (D. Wyo. 2014). We saw a related application back in October 2013. As in the earlier case, Pinchuk sought evidence for use in an LCIA arbitration; additionally, he sought the evidence for use in an action pending in the courts of Cyprus.

The court granted Pinchuk’s action under § 1782 without much discussion. Because the Cyprus action was plainly a foreign proceeding to which the statute applies, the judge was able to put aside the question whether the LCIA arbitral proceeding also qualified—a topic we’ve discussed several times before. There is only one point I thought worth noting for you: apparently Pinchuk was not himself a party to the Cyprus action. Rather, he “owns and/or controls” the investment companies that are the parties. The judge, without any real discussion, held that Pinchuk was an interested person for purposes of the statute. I don’t want to opine on this issue, but rather just to flag it for further thought and discussion. There has, I think, to be some limit to the idea that a mere beneficial interest in the outcome of a litigation makes one an interested party. If Apple is party to a foreign litigation and I own 10 shares of Apple stock, presumably I am not an interested person. On the other hand, if Letters Blogatory LLC is a party to a foreign litigation and I am the sole member, then maybe I am interested. It would have been better in any event for the real parties in interest in the Cyprus action to join in the application.

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.

Leave a Reply

Your email address will not be published. Required fields are marked *