The case of the day is Fuhr v. Credit Suisse AG (11th Cir. 2017). Tim Fuhr claimed to be the heir of Dr. Ambrosius Wolfgang Bäuml, the last heir of the Wertheim family. Fuhr’s investigator, Gerda Mangliers, received from Renate Sgier, a Credit Suisse official, information about a Credit Suisse account that Mangliers claimed Bäuml owned. But Credit Suisse then stopped providing information, claiming it had learned that Bäuml did not own the account after all. Fuhr wrote letters to third parties alleging that Luis Marimón Garnier, a former Deutsche Bank officer, had wrongly diverted funds from the Credit Suisse account to a Deutsche Bank account. Marimón then sued Fuhr for defamation in Germany, and he brought a § 1782 application in Miami. The district court granted the application, and Credit Suisse sought to quash. The court denied the motion, and Credit Suisse appealed
The Eleventh Circuit began with an interesting jurisdictional point that some other circuits had considered but the Eleventh Circuit had not. Ordinarily, only final judgments are appealable, and in general, when you want to appeal from the denial of a motion to quash a subpoena, you have to disobey the subpoena, litigate the issue of contempt, and then appeal from the contempt finding. But as other circuits have done, the court noted that an order on a motion to quash the subpoena in a § 1782 case is not interlocutory, as it is in a typical civil action: it’s the purpose and the end of the action. So the court found that it did indeed have jurisdiction.
In an interesting move, the court found that the lower court had clearly erred in its factual finding that Bäuml owned a Credit Suisse account, which was important to the lower court’s decision because if Bäuml did own an account, then disclosure of the information sought would not violate Swiss bank secrecy law—a point important to the circumvention analysis under Intel. I won’t review the evidence here, but I have to say I found it a stretch to say that the lower court clearly erred. There was evidence on both sides, and the court essentially credited Credit Suisse’s explanations for what seemed to be its acknowledgments that Bäuml did own an account, arguably overstepping its bounds. I wonder whether the decision was really more about comity than about an error of fact.