The case of the day is Goenechea v. Davidoff (D. Md. 2016). Juan Miguel Goenechea was a Spanish lawyer. He advised Luis Rullan on the purchase of a summer camp in West Virginia. The purchase of the camp was at issue in Rullan v. Goden, a claim Rullan brought against Jill Goden. Goden’s lawyer, Jonathan Marc Davidoff, sent Goenechea and one of his law partners a letter, in which Davidoff “threatened to sue Goenechea and [his law firm,] Uria Menendez and expressed his ‘shock and dismay’ at what he called the ‘fraudulent scheme’ that Goenechea and Uria Menendez ‘assisted Mr. Rullan [to] perpetuate.’ He called Goenechea’s representation of Rullan ‘abhorrent’ for ‘such a distinguished attorney and law firm,’ and ‘unbecoming of those who practice in the United States, or in fact in any jurisdiction in this world.’” Davidoff also sent similar letters to Freshfields Bruckhaus Deringer and to Ernst & Young, both of which may have had some role in the dispute, though that’s not really clear. With the letters, he included translations of emails between Goenechea and Rullan.

Goenechea claimed that the letters damaged his reputation, and he made a request for conciliation to a court in Madrid. In the conciliation, he sought a “negotiated resolution” of the dispute. He believed that Goden was responsible for obtaining the emails, which were privileged, and he brought a § 1782 application seeking discovery from Goden in aid of the conciliation.

The court, wisely in my view, had doubts about whether the conciliation was a proceeding before a foreign tribunal. The cases ask whether the foreign body is a first-instance decisionmaker with the power to determine liability, and whether its decision is subject to judicial review. A conciliation probably fails to meet this standard. But the court noted that in Spanish procedure a conciliation could precede an action for libel, and that Goenechea was seeking the discovery in contemplation of a future libel proceeding. Thus the judge avoided the problem of characterizing the conciliation for purposes of 28 U.S.C. § 1782.

A short Intel analysis supported the request, and the judge therefore authorized the discovery.