Case of the Day: In re Application Pursuant to § 1782
Posted on September 18, 2014
The case of the day is In re Application Pursuant to 28 U.S.C. § 1782 (S.D. Ohio 2014). Sebastian Stygar was one of the shareholders and managing directors of several companies called the Lingaro entities. He claimed he had been wrongfully frozen out of the business, and he sought discovery from his two fellow principals, Slawomir Kaczor and Tomasz Rogucki, for use in litigation concerning the dispute in Poland. The facts of the dispute aren’t otherwise important. The key question is where Kaczor and Rogucki could be found. Under § 1782, you can obtain an order for discovery from someone who “resides or is found” in the relevant judicial district. Here, Stygar’s claim was that Kaczor and Rogucki were “found” in the Southern District of Ohio because they occasionally traveled to Cincinnati for work.
Unfortunately for Stygar, the affidavits he submitted were insufficient, in the judge’s view, to show that the two witnesses were present in the district. There was no evidence that Rogucki was currently there, and the averment that “It is believed that Kaczor can be found within this district until August 22, 2014” was held insufficient. This was perhaps just a matter of bad draftsmanship: perhaps something like “Kaczor told me that he will be traveling in Cincinnati on such-and-so dates” would have done the trick. So far so good. But the judge, who denied the application, muddied the waters a little bit by seeming to suggest that being “found” in a district is the same as residing there. She wrote, incorrectly I think, that Stygar “had failed to make the requisite prima facie showing of residency for Section 1782 purposes.” As with a subpoena—or a summons for that matter—”tag service” is permissible, though I wouldn’t be surprised in light of recent trends in personal jursidiction law if that won’t be true forever.
The judge also noted that even if she granted the application, under FRCP 45, the witnesses could only be compelled to appear within 100 miles of a place where they “regularly transact business in person.” She questioned whether the affidavit, which represented that they traveled to Cincinnati “from time to time,” was enough. But this is mere dicta and maybe driven by another case of unfortunate drafting.