United States District Court, N.D. Ohio, Eastern Division
IN RE APPLICATION FOR DISCOVERY PURSUANT TO 28 U.S.C. § 1782. ANNA MARIA PELLESCHI and BRIGITTE PELLESCHI, MOVANTS.
MEMORANDUM OPINION AND ORDER
HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE
the Court is the ex parte application of Anna Maria
Pelleschi and Brigitte Pelleschi (“movants”) for
discovery pursuant to 28 U.S.C. § 1782. (Doc. No. 1
[“Appl.”].) Movants are the personal
representatives of the Estate of Renato Pelleschi (the
“Estate”) who are seeking judicial assistance in
obtaining evidence for use in aid of post-judgment execution
in a foreign proceeding in Italy captioned Renato
Pelleschi v. Francesco Pocci and Anna Pocci, No. RG
3787/2013 (“foreign proceeding”). In particular,
the Estate asks the Court to issue and serve testamentary
subpoenas duces tecum upon Francesco Pocci and Anna
Pocci (the “foreign defendants”). (Appl. at
The Court directed movants to supplement their application by
filing a copy of the foreign judgment, with a certified
English translation; they have done so. (See Doc.
ex parte application is an acceptable method for
seeking discovery pursuant to 28 U.S.C. § 1782.”
In re Application of Ontario Principals'
Council, No. MC-14-00050-PHX-SPL, 2014 WL 3845082, at *2
(D.Ariz. Aug. 1, 2014) (citing In re Letters Rogatory
from Tokyo Dist., Tokyo, Japan, 539 F.2d 1216, 1219 (9th
Cir. 1976)); see also Gushlak v. Gushlak, 486
Fed.Appx. 215, 217 (2d Cir. 2012) (“[I]t is neither
uncommon nor improper for district courts to grant
applications made pursuant to § 1782 ex parte.
The respondent's due process rights are not violated
because he can later challenge any discovery request by
moving to quash pursuant to Federal Rule of Civil Procedure
the relevant statute, a district court may order discovery if
three prerequisites are met: (1) the person from whom the
discovery is sought “resides or is found” in the
district; (2) the discovery sought is “for use in a
proceeding in a foreign or international tribunal[;]”
and (3) the application for discovery is made by “any
interested person[.]” 28 U.S.C. § 1782(a).
a district court may order discovery if these three
requirements are met, before doing so it should also consider
the following factors. First, the Court should consider
whether the person from whom discovery is sought is a
litigant in the foreign proceeding, in which case the
discovery might be obtained in the course of that proceeding.
Intel Corp. v. Advanced Micro Devices, Inc., 542
U.S. 241, 264, 124 S.Ct. 2466, 159 L.Ed.2d 355 (2004).
Nonparticipants in the foreign litigation “may be
outside the foreign tribunal's jurisdictional reach;
hence their evidence, available in the United States, may be
unobtainable absent § 1782(a) aid.” Id.
Second, the district court “may take into account the
nature of the foreign tribunal, the character of the
proceedings underway abroad, and the receptivity of the
foreign government or the court or agency abroad to U.S.
federal-court judicial assistance.”
Id. Third, the district court “could
consider whether the § 1782(a) request conceals an
attempt to circumvent foreign proof-gathering restrictions or
other policies of a foreign country or the United
States.” Id. at 265. Fourth, the district
court should consider whether the discovery request is
“unduly intrusive or burdensome[.]” Id.
29, 2018, Renato Pelleschi (“Pelleschi”) obtained
a civil judgment against the foreign defendants in the
foreign proceeding for, among other things, € 982,
918.38. (Appl. at 2 ¶ 3; Doc. No. 1-2, Declaration of
Marco Lastilla [“Lastilla Decl.”] ¶ 12.)
By forging a will, the foreign defendants, who are siblings,
had purported to be the testamentary heirs of Pelleschi's
deceased wife, Luana Mannucci (their cousin). Pelleschi
proved the falsity of the will in the foreign proceeding and
was declared Luana Mannucci's sole heir ex lege.
(Appl. ¶ 4; Lastilla Decl.¶¶ 6- 11, 13.)
Pelleschi himself recently died. (Lastilla Decl. ¶ 7.)
At the time, he had not recovered any amount due under the
foreign judgment; his Estate has also not recovered any
amount of the judgment. (Id. ¶¶ 14-15.)
instant application seeks to have this Court issue subpoenas
duces tecum by which the movants will be able to
depose the foreign defendants and “to obtain any
documents and information from the [f]oreign [d]efendants
regarding any assets, ownership interest, funds, the use
thereof, transfers of tangible and intangible property, and
any other means of the [f]oreign [d]efendants available for
satisfaction of the [j]udgment within the [f]oreign
[p]roceedings.” (Id. ¶¶ 5, 18.)
The Three Statutory Requirements
first statutory requirement is met in this case. According to
the governmental Register of Italians Residing Abroad,
Francesco Pocci resides in Strongsville, Ohio and Anna Pocci
resides in Shaker Heights, Ohio (that is, within this
district). (Appl. Ex. A [Doc. No. 1-1] at 4-5; Lastilla Decl.
second statutory requirement is also met since the requested
documents and deposition testimony are for use in the foreign
proceeding. In particular, the requested information is
directly relevant to the Estate's execution of the
judgment in the foreign proceeding. (Lastilla Decl.
¶¶ 4- 5, 17-19.) This Court need not determine
whether the evidence would be discoverable or admissible in
the foreign proceeding. Intel, 542 U.S. at 260
(“Beyond shielding material safeguarded by an
applicable privilege, however, nothing in the text of §
1782 limits a district court's production-order authority
to materials that could be discovered in the foreign
jurisdiction if the materials were located there.”).
the third statutory requirement is met because the Estate is
the “automatic successor in interest” of Renato
Pelleschi (Lastilla Decl. ¶ 15), who obtained a civil
judgment in a foreign proceeding against the foreign
defendants. The Estate, therefore, is an “interested
The “Other ...