Case of the Day: In re Accent Delight
Posted on August 31, 2017
The case of the day is In re Accent Delight International (2d Cir. 2017). Accent Delight and Xitrans Finance Ltd. were BVI companies owned by Dmitry Rybolovlev’s family trusts. Rybolovlev was a Russian national who resided in Monaco. Yves Bouvier was a Swiss national who dealt in fine art through MEI Invest Ltd., a Hong Kong company he controlled. Bouvier brokered Rybolovlev’s purchase of $2 billion in artworks, including paintings by Picasso and van Gogh. In 2014, the New York Times reported that Sotheby’s had sold Leonardo da Vinci’s Christ as Salvator Mundi for $75 or $80 million in 2013, which was allegedly a surprise to Rybolovlev, who claimed he had purchased the painting through Bouvier the same month for $127.5 million!
Rybolovlev and his companies claimed that Bouvier had failed to disclose the Sotheby’s sale to them and instead had given them a false account of the sale. They made similar claims about other sales Bouvier had brokered, alleging they had been defrauded to the tune of $1 billion. The proceedings were in Monaco, France, and Singapore. The Singaporean case was a civil action for fraud. The Monegasque and French cases were criminal cases. Rybolovlev commenced the case in Monaco and participated as a civil party after the magistrate brought charges. Picasso’s stepdaughter, Catherine Hutin-Blay, commenced the case in France, alleging that several of the works Rybolovlev had acquired from Bouvier had been stolen from her. Again, Rybolovlev participated as a civil party. The Singaporean case was stayed on forum non conveniens grounds, and Rybolovlev, for reasons that aren’t that important here, waived the right to seek damages in the Monegasque case.
Accent Delight and Xitrans brought a § 1782 application in New York, seeking discovery from Sotheby’s and others. Sotheby’s and the applicants reached an agreement about what information should be produced; but Bouvier intervened and objected to the agreed-on discovery. The district court granted the application with respect to the Monegasque case, over Bouvier’s objection that because the Monegasque case was a criminal case, Rybolovlev, notwistanding his role as a civil party in the case, could not be seeking the discovery “for use in” the case. A protective order limited the use of the discovery to the French, Singaporean, and Monegasque cases. Bouvier appealed. By the time the appeal was pending, Rybolovlev had submitted the discovery in Monaco, and the Singaporean case was stayed indefinitely; but because the French case was still pending, the court began by finding that the appeal was not moot and thus that it had jurisdiction.
The court held that Rybolovlev could satisfy the “for use” requirement of the statute with respect to the Monegasque case even though Rybolovlev wasn’t seeking relief in the case. This holding seems clearly correct in light of Intel, which was, of course, a criminal case in which the applicant played an ancillary role and did not have a direct financial stake in the outcome. The key fact is that the applicant has the right to offer the evidence in the foreign case. The court’s discussion was much more elaborate, but that’s the crux of it.
Bouvier also argued that the district court erred insofar as it made its decision based only on the Monegasque case but the protective order allowed the information obtained to be used in France and Singapore. Citing the Glock case, which I covered in 2015, the court held, apparently correctly, that nothing in § 1782 prevents a party that obtains evidence by way of § 1782 from making whatever lawful use of the information in other proceedings, absent a protective order forbidding such use. Thus the court affirmed.