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In re Ex party Application of Societe d'Etude de Realisation et d'Exploitation Pour le Traitement du Mais

United States District Court, Third Circuit

November 22, 2013

In re EX PARTE APPLICATION of SOCIÉTÉ D’ETUDE DE RÉALISATION ET D’EXPLOITATION POUR LE TRAITEMENT DU MAIS, Applicant For an for a Subpoena, Pursuant to 28 U.S.C. § 1782a, for Domestic Discovery for Use in Foreign Proceedings, to be served on 1&1 Mail & Media Inc., fka GMX Internet Services Inc.

MEMORANDUM

GENE E.K. PRATTER United States District Judge.

On November 20, 2013, Société d’Etude de Réalisation et d’Exploitation pour le Traitement du Mais (“SERETRAM”) applied for an order for leave to file a subpoena on 1&1 Mail & Media Inc., formerly known as GMX Internet Services Inc. (“GMX”), pursuant to 28 U.S.C. § 1782(a), to obtain discovery here in the United States for use in an ongoing criminal proceeding in France, as well as an expected criminal proceeding in the United Kingdom, against a fraudster who allegedly used a GMX-hosted email address in furtherance of a successful scheme to abscond with €17 million of SERETRAM’s funds.

In brief, according to its application: SERETRAM, a French food processing company owned 50% by General Mills Corporation, had €19 million in capital before a fraudster impersonated its Financial Director, André Yvin, in an email sent from a fraudulent address, which the fraudster claimed was Mr. Yvin’s personal email address. From this fraudulent address, the fraudster emailed a SERETRAM accountant, Annie Larrouture, and instructed her that a takeover bid would soon precipitate but that it was “highly confidential” such that she should communicate about it to no one else. In a statement of particular relevance to the instant application, the fraudster directed Ms. Larrouture to contact “our legal firm” at cabinet.laborde-finance@gmx.com—as evident from the address, a GMX-hosted account. In emails that followed, the fraudster directed her to transfer, in four installments, approximately €17 million of SERETRAM’s funds to a bank account. Only when another SERETRAM employee attempted to shift funds from another of SERETRAM’s accounts after the fraudulent transfers overdrew the transferor account did a bank inform that SERETRAM employee of its concern that the transfers might be fraudulent, thereby opening SERETRAM’s proverbial eyes to what had really occurred.

In the days that followed, the London police began an investigation and SERETRAM obtained its own order from the London High Court on November 7, 2013, compelling production of the relevant bank records. SERETRAM also obtained an order from the High Court of Hong Kong freezing bank accounts that had received funds originating with the fraudulent transfers. Criminal proceedings are underway in France and are expected to be initiated soon in the United Kingdom.

SERETRAM, applying ex parte to this Court, now seeks discovery from GMX regarding the allegedly fraudulent GMX account, which the fraudster used to cast an aura of authenticity over its deception. SERETRAM wants information about the identity of the owner of the account, his or her location, and any other information that will assist in pursuing redress against or punishment of those responsible for the fraud. For the reasons that follow, SERETRAM’s application will be granted as outlined below and specified in the accompanying Order.

“Section 1782 is the product of congressional efforts, over the span of nearly 150 years, to provide federal-court assistance in gathering evidence for use in foreign tribunals.” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 247 (2004). Section 1782(a) provides, in full:

The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.
A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.

28 U.S.C. § 1782(a).

The Supreme Court has interpreted § 1782 but once, in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, but that decision provides most of the guideposts needed here.[1] The core of § 1782(a) consists of two components: (1) mandatory requirements that the applicant must meet to trigger (2) the district court’s weighing of discretionary factors regarding whether to grant the application, because “[t]he statute authorizes, but does not require, a federal district court to provide assistance to a complainant . . . .” Intel, 542 U.S. at 255. So long as the district court correctly applies the law, its analysis in the discretionary second stage is reviewed for abuse of discretion. In re Chevron Corp., 633 F.3d 153, 161 (3d Cir. 2011).

The mandatory requirements relevant here, as the language of the statute indicates, are as follows: (1) the person to be subpoenaed must reside in the district in which the district court sits; (2) the request must be for “testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal”; (3) “proceeding . . . include[es] criminal investigations conducted before formal accusation”; and (4) the request may come from “any interested person.” 17 U.S.C. § 1782(a). These statutory requirements are met here.

First, GMX resides within the Eastern District of Pennsylvania, namely, at 701 Lee Road, Suite 300, Chesterbrook, PA, 19087. See Lacovara Decl. ¶ 8; Ex. C; see also Intel, 542 U.S. at 246 (“Section 1782(a) provides that a federal district court ‘may order’ a person ‘resid[ing]’ or ‘found’ in the district to give testimony or produce documents ‘for use in a proceeding in a foreign or international tribunal . . . upon the application of any interested person.’”). Second, in seeking information about one of GMX’s users, SERETRAM has requested discovery that clearly falls under the “testimony or statement” or “document or other thing” requirement.

Third, each of the criminal proceeding in France and the expected criminal proceeding in the United Kingdom, see Lacovara Decl. ¶¶ 5, 6, provides an independently adequate instantiation of “a proceeding in a foreign tribunal, including criminal investigations conducted before formal accusation, ” 17 U.S.C. § 1782(a). Indeed, in Intel, the Supreme Court rejected the respondent’s proffered interpretations of § 1782(a) that the foreign proceeding must be “pending” or even “imminent” in favor of holding, consistent with the statute’s plain text as well as Congress’s purpose evident in the legislative history, “that § 1782(a) requires only that a dispositive ruling . . . be within reasonable contemplation.” 542 U.S. at 258-259.

Finally, SERETRAM is an “interested person.” As the Supreme Court explained in Intel, the statute’s “text makes plain” that “interested person” reaches beyond litigants to include complainants, 542 U.S. at 256 (citation and ...


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