*1 On November 17, 2020, the Honorable Ursula Ungaro entered an order, pursuant to 28 U.S.C. § 1782, granting the Eduardo Gonzalez's Application for judicial assistance in obtaining evidence for use in a foreign international proceeding. [ECF No. 8]. Respondent Verfruco Foods Inc. has moved to vacate the order and to quash the subpoenas issued under the order. [ECF No. 13, Motion to Vacate Ex Parte Order Granting 28 U.S.C. § 1782 Application (“Motion to Vacate”) and ECF No. 15, Motion to Quash Subpoenas Issued Pursuant to Order Granting 28 U.S.C. § 1782 Application, or, in the alternative, Objection to Documents Requested in the Subpoena and Objection to Deposition and Memorandum of Law (“Motion to Quash”) (collectively “Motions”)]. Pursuant to 28 U.S.C. § 636, the Court referred the Motions to the Undersigned. [ECF No. 25].

After carefully considering the Motions, all supporting and opposing submissions, the record in this case, applicable law, and the oral arguments of the parties, for the reasons discussed below, Respondent's Motion to Vacate [ECF No. 13] and Motion to Quash [ECF No. 15] are DENIED.

Eduardo Gonzalez (“Gonzalez” or “Applicant”) filed his Application under 28 U.S.C. § 1782,[1] requesting the issuance of subpoenas directed to Verfruco Foods U.S., and its owners, Victor Sebastian-Mauricio and Jamie Sebastian-Mauricio (collectively the “Brothers”). [ECF No. 1]. Gonzalez sought to obtain testimony and documents from Verfruco U.S. for use in anticipated foreign proceedings in Mexico. [Id.]. His Application arose from the Brothers purported decade-long effort to deprive him of his 8% equity interest in Verfruco Mexico, S. de R.L. de C.V. (“Verfruco Mexico”). [Id.].

Gonzalez claims that the Brothers, as partial owners of Verfruco Mexico, transferred its assets to other companies owned and/or controlled by them. [Id.]. These companies are Verfruco U.S., and Mexican companies, Freshcourt, S. de R.L. de C.V. (“Freshcourt”), Novafoods, S. de R.L. de C.V. (“Novafoods”), and FI Avocados, S. de R.L. de C.V. (“FI Avocados”). [ECF Nos. 1; 1-1]. Gonzalez purports that Verfruco U.S. receives the revenues for most of the sales of “the business,” and that the “Verfruco business” generates approximately $50 million annually. [ECF No. 1-1 ¶¶ 53, 55]. He asserts that he has never received a single distribution or dividend payment and that the Brothers have refused to provide him an accounting of the business. [Id. ¶¶ 39, 52].

According to the Declarations of Gonzalez and Attorney Fernando Martinez (Gonzalez's attorney in Mexico representing him with respect to the contemplated litigation), Gonzalez intends to commence litigation in Mexico against Verfruco Mexico, Freshcourt, Novafoods, and FI Avocados (collectively, the (“Mexican Companies”)) to recover the value of his 8% ownership interest in Verfruco Mexico and reverse the purported fraudulent transfer of assets that have drained Verfruco Mexico of its value. [ECF No. 1-2 ¶¶ 6-8].

*2 The Court granted Gonzalez's § 1782 Application and ordered the Clerk of Court to issue the subpoenas. [ECF No. 8]. Verfruco U.S. and the Brothers were ordered to provide deposition testimony and to produce the documents requested in the subpoenas that [were] within their possession, custody, and/or control”. [Id.]. In the subpoenas, Gonzalez sought documentary and testimonial evidence from Verfruco U.S. as to the: (1) assets, revenues, and profits of the Mexican Companies; (2) transfers of assets or cash from the Mexican Companies to the Brothers or to companies owned and/or controlled by them; and (3) evidence of Gonzalez's ownership interest and any efforts to deprive him of that interest. [ECF Nos. 1 at 20; 1-3 at 25, 39-40, 47].

Both the Brothers and Verfruco U.S. filed motions seeking to vacate[2] the Court's Order granting the Application. [ECF Nos. 13-16]. Gonzalez withdrew his Application against the Brothers upon discovering they do not reside in Miami. [ECF No. 20]. The Court granted the Brothers' Motion to Vacate. [ECF No. 24]. Verfruco U.S. is now the only remaining Respondent in this matter.

Gonzalez filed a Response to Verfruco U.S.' Motions [ECF No. 22], and Verfruco U.S. filed a Reply [ECF No. 23]. The Undersigned then held a hearing and the parties subsequently filed supplemental pleadings. [ECF Nos. 31, 32]. The main issue in dispute is whether the discovery sought by Gonzalez regarding the Mexican companies is within Verfruco U.S.' possession, custody, or control within the meaning of Federal of Civil Procedure 45.

Section 1782 authorizes, but does not require, federal courts to provide applicants assistance “in gathering evidence for use in foreign tribunals.” Sergeeva v. Tripleton Int'l Ltd., 834 F.3d 1194, 1198 (11th Cir. 2016) (citation omitted). A district court's decision to grant or deny relief under the statute is discretionary. See Application of Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 747 F.3d 1262, 1271 (11th Cir. 2014). Before a district court may grant an application under § 1782, the applicant must satisfy four prima facie statutory requirements:

28 U.S.C. § 1782(a); see also In re Clerici, 481 F.3d 1324, 1331 (11th Cir. 2007).

“Once the prima facie statutory requirements of § 1782 are satisfied, the Court must also apply the four discretionary factors established by the Supreme Court in Intel, which include:

Clerici, 481 F.3d at 1334 (quoting Intel, 542 U.S. at 264-265). If the application is granted, the document or thing produced must be done so in accordance with the Federal Rules of Civil Procedure. 28 U.S.C. § 1782(a).

If a court orders discovery under § 1782, “the burden shifts to the opposing litigant to demonstrate, by more than angry rhetoric, that allowing the discovery sought (or a truncated version of it) would disserve the statutory objectives.” In re Gyptec S.A., No. 16-CV-20810, 2017 WL 6559792, at *1 (S.D. Fla. Oct. 19, 2017) (citation omitted).

Verfruco U.S. raises three central arguments: (1) that Gonzalez has not met the “for use in a proceeding in a foreign or international tribunal” statutory requirement of § 1782; (2) it should not be required to produce documents which may be in the possession of the Mexican Companies; and (3) the discretionary factors which must be considered by the Court as set forth in Intel weigh in its favor. The Undersigned will consider Verfruco U.S.' arguments in turn.

1) Prima Facie Statutory Requirements under 28 U.S.C. § 1782(a)

Gonzalez has clearly satisfied three of the statutory prima facie requirements of § 1782. He is an interested person who seeks evidence from a company whose principal place of business is in Coral Gables, Florida, a city located in this district. Verfruco U.S. challenges, however, the third statutory requirement under § 1782, the requirement that the evidence must be “for use in a proceeding in a foreign or international tribunal.” [ECF No. 13 at 6-8].

Verfruco U.S. argues that Gonzalez's true motive is not to file suit in Mexico to pursue the transfer of company assets but instead to put pressure on the other owners of the Mexican Companies to buy him out at a higher price. [Id. at 7]. Verfruco U.S. maintains that Gonzalez is not trying to obtain evidence from it about the financial condition of the Mexican Companies because Verfruco U.S. does not have that information in its “possession.” [Id.].

As evidence of Gonzalez's true motive, Verfruco U.S. contends that Gonzalez could have obtained the information he seeks about the Mexican Companies in a Mexican court. [ECF Nos. 13 at 7; 23 at 2-3]. As proof, Verfruco U.S. maintains that if Gonzalez, as a shareholder in Verfruco Mexico and NovaFoods and an indirect minority interest owner in Freshcourt and FI Avocados, proves under Mexico's Commercial Code he is a partner or co-owner of these companies and meets certain procedural requirements, he will have the right to inspect records and accounts of these entities before filing suit.[3] [ECF No. 13 at 7-8] (citing [ECF No. 13-3 ¶¶ 4-6]). Verfruco U.S. also relies on email messages from Gonzalez to Victor Sebastian-Mauricio, in which Gonzalez requests information about the financial status of the four Mexican Companies. [Id. at 8]. Verfruco U.S. claims that to the extent Gonzalez did not obtain the information he sought; he could have initiated a proceeding in Mexico under the Commercial Code to obtain a court order for that information. [Id.].

*4 Gonzalez, however, asserts that his ability to obtain documents in Mexico from Mexican Companies is irrelevant because the information he seeks is in the hands of Verfruco U.S., a U.S. entity outside of the jurisdiction of Mexican courts. [ECF No. 22 at 6]. He also asserts that any possible right to inspect the Mexican Companies' records as a co-owner has no impact on his right to seek evidence in the custody or control of Verfruco U.S. to use in the contemplated Mexican proceedings. [Id.] (citing [ECF No. 13-3 ¶¶ 4-6]). Lastly, Gonzalez contends that the Motions and their supporting declarations indicate that under Mexican law he would be limited to obtaining only the financial records of the Mexican Companies at issue, which would not include key evidence such as email correspondence and testimony. [Id. at 6-7] (citations omitted).

Here, the Undersigned finds Verfruco U.S.' argument unavailing. Section 1782 does not impose a foreign discoverability requirement. See Intel, 542 U.S. at 253; see also In re NRC Holding, Ltd., No. 14-MC-61962, 2015 WL 541770, at *2 (S.D. Fla. Feb. 10, 2015). Even if the discovery Gonzalez is seeking here is available to him in Mexico, “this does not mean that [he] is not entitled to seek discovery using the procedures set forth in Section 1782.” Gyptec, S.A. v. Hakim-Daccach, No. 16-20810-CIV, 2017 WL 6557425, at *7 (S.D. Fla. Sept. 27, 2017), aff'd sub nom. In re Gyptec S.A., 2017 WL 6559792 (S.D. Fla. Oct. 19, 2017).

Additionally, “courts have [also] granted Section 1782 discovery where the discovery procedures in the country where the lawsuit is proceeding do not allow for the party seeking the application to obtain the information.” Id., at *7; see also Heraeus Kulzer, GmbH v. Biomet, Inc., 633 F.3d 591 (7th Cir. 2011) (allowing discovery where German court would not allow discovery for categories of documents). The choice of how to obtain “discovery lies with the party seeking the discovery and requiring that [an applicant] seek the discovery in [the foreign forum] would result in including an exhaustion requirement in section 1782 that is not present.” Gyptec, 2017 WL 6557425, at *7 (citing In re Application of North Am. Potash, Inc., Case No. 12-20637-CIV-WILLIAMS, 2012 WL 12877816 (S.D. Fla. Nov. 19, 2012)). Conclusively, Gonzalez's ability or inability to obtain in a Mexican forum the discovery he seeks here, does not prevent him from satisfying the “for use in a foreign tribunal” requirement under § 1782. See Intel, 542 U.S. at 253.

Finally, Verfruco U.S. asserts that Gonzalez has not met the “for use” requirement because he has failed to identify the Mexican court or tribunal in which he will file his actions, and so, an appropriate assessment cannot be made as to whether the evidence Gonzalez seeks is relevant to and for use in that particular foreign forum. [ECF Nos. 13 at 8; 23 at 4-6]. Refuting this argument, Gonzalez asserts that he has satisfied the “for use” requirement because he will use the requested evidence in the contemplated Mexican litigation. [ECF No. 22 at 6].

The Undersigned finds Verfruco U.S.' argument unpersuasive because identification of the specific foreign tribunal is not necessary to meet the “for use” requirement under § 1782. “[T]he Supreme Court has recognized the ‘broad range of discovery’ authorized under § 1782 and has held that § 1782 is not limited to proceedings that are pending or imminent.” Clerici, 481 F.3d at 1333 (quoting Intel, 542 U.S. at 259). Rather, it is only necessary that “the foreign ‘proceeding for which discovery is sought ... be “within reasonable contemplation.’ ” Pons v. AMKE Registered Agents, LLC, 835 F. App'x 465, 470 (11th Cir. 2020) (quoting Clerici, 481 F.3d at 1333).

“The future proceedings must be more than speculative, however, and a ‘district court must insist on reliable indications of the likelihood that proceedings will be instituted within a reasonable time.’ ” Consorcio Ecuatoriano de Telecomunicaciones S.A., 747 F.3d at 1270; see also Application of Furstenberg Fin. SAS v. Litai Assets LLC, 877 F.3d 1031, 1034–35 (11th Cir. 2017) (finding that district court did not err by concluding discovery sought was “for use in a proceeding in a foreign ... tribunal” because applicants intended to file a criminal complaint for damages in Luxembourg withing forty-five days of receiving discovery sought under § 1782); In re Letter of Request from Crown Prosecution Serv. of United Kingdom, 870 F.2d 686, 692 (D.C. Cir. 1989) (affirming the district court's decision to honor a discovery request where the § 1782 application was made before the applicant had even commenced litigation in the foreign tribunal).

*5 Here, the Application and the Fernando Martinez Declaration provide that Gonzalez will be pursuing specific civil actions in Mexico against the Mexican Companies related to the transfer of and unlawful dissipation of Verfruco Mexico's assets. [ECF Nos. 1 at 11-12, 15-16; 1-2 at 8 ¶ 6-9]. Second, Mexican law recognizes the causes of action Gonzalez is contemplating, which include both tort and contractual claims. [Id.]. Third, Gonzalez plans to commence these actions within three months of obtaining the requested discovery. [Id.]. As such, based on the above proffered information, Gonzalez has shown that the foreign proceeding here, the Mexican litigation for which this discovery is sought, is within reasonable contemplation. See Pons, 835 F. App'x at 470; see also In re da Costa Pinto, No. 17-22784-MC, 2019 WL 3409488, at *4 (S.D. Fla. May 16, 2019), R. & R. adopted, No. 17-CV-22784, 2019 WL 11583397 (S.D. Fla. Nov. 19, 2019) (finding amended application sufficient to establish the “what,” “when,” and “why” satisfied the “third requirement of § 1782[,] that the anticipated action be reasonably contemplated”). Therefore, Gonzalez has satisfied the “for use” requirement of § 1782.

2) Extraterritorial Application of § 1782 & the Scope of “Control” in Fed. R. Civ. P. 45

The central issue in this matter is whether Verfruco U.S. is required to produce documents requested in the subpoenas which may be in the possession of the Mexican companies. See [ECF Nos. 31; 32]. Specifically, in the subpoenas, Gonzalez seeks documents and testimony about: (1) the “assets, revenues, and profits” of the Mexican Companies; (2) any “transfers of assets or cash from” the Mexican Companies to the Brothers or to companies owned and/or controlled by them; and (3) “Gonzalez's ownership interest” in the Mexican Companies and any “efforts to deprive” him of his interest in those companies. [ECF Nos. 1 at 20; 1-3 at 25, 39-40, 47].

Verfruco U.S. asserts that it searched its files and records but has none of the evidence sought by Gonzalez among its paper, electronic files, and records in the United States. [ECF No. 32 at 2-3]. Verfruco U.S. instead proffers that the evidence Gonzalez seeks, if it exists, is physically in possession of the Mexican Companies. [Id.]. As such, Verfruco U.S. argues that the term “control” in the “possession, custody, or control” language in the subpoenas[4] and Federal Rule of Civil Procedure 45(a)(1)(A)(iii), does not require it to produce documents within the possession or custody of the Mexican Companies or provide information in a deposition about alleged events and activities in Mexico. [ECF Nos. 31; 32].

Having reviewed the pleadings of the parties, the main issue in dispute here is whether the discovery sought by Gonzalez regarding the Mexican companies is within the possession, custody, or control of Verfruco U.S. within the meaning of Federal of Civil Procedure 45.

Sergeeva v. Tripleton Int'l Ltd., 834 F.3d 1194, 1198 (11th Cir. 2016), is determinative of the reach of § 1782 and explains the legal standard for “control.” As stated in Sergeeva, section “1782 plainly says that discovery is to be produced pursuant to Federal Rules of Civil Procedure ... [and the Federal Rules of Civil Procedure allow discovery of] materials located outside of the United States.” 834 F.3d at 1198. Federal Rule of Civil Procedure 45 requires subpoenaed parties to “produce designated documents, electronically stored information, or tangible things in [their] possession, custody, or control ....” Fed. R. Civ. P. 45(a)(1)(A)(iii). Under Rule 45 there is no geographical limitation on location of the documents or information to be produced, only on the “location for the act of production (Rule 45(c)(2)(A)).” Sergeeva, 834 F.3d at 1200 (emphasis in original).

Accordingly, Sergeeva dictates that “the location of responsive documents and electronically stored information—to the extent a physical location can be discerned in this digital age—does not establish a per se bar to discovery under § 1782.” 834 F.3d at 1200 (emphasis in original); see also In re del Valle Ruiz, 939 F.3d 520, 531 (2d Cir. 2019). Therefore, Verfruco U.S. can be required to “produce responsive documents and information located outside of the United States -- so long as [it has] possession, custody, or control of such responsive material (‘Control Requirement’).” Sergeeva, 834 F.3d at 1200 (emphasis in original).

*6 For purposes of discovery, the standard for “control” has been broadly construed as “the legal right to obtain the documents requested upon demand.” Id. at 1201 (quoting SeaRock v. Stripling, 736 F.2d 650, 653-54 (11th Cir. 1984)). “[A] party's ‘practical ability’ to obtain documents is a relevant evidentiary consideration [under the “legal right”] standard.” In re Takata Airbag Prod. Liab. Litig., No. 15-02599-MD, 2017 WL 8812733, at *3 (S.D. Fla. Feb. 16, 2017) (noting that Sergeeva, 834 F.3d at 1200, cited Costa v. Kerzner Int'l Resorts, Inc., 277 F.R.D. 468, 473 n. 2 (S.D. Fla. 2011), “for its proposition that a party's ‘practical ability’ to obtain responsive documents is a relevant inquiry under Rule 34”).

Under this principle of broad construction, “discovery can be sought from one corporation regarding materials that are in the physical possession of another, affiliated corporation.” Sanho Corp. v. KaiJet Tech. Int'l Ltd., Inc., No. 1:18-CV-05385-SDG, 2020 WL 4346881, at *10 (N.D. Ga. July 29, 2020) (quoting Batista v. Nissan N. Am., Inc., No. CV 14-24728-CIV, 2015 WL 10550409, at *2 (S.D. Fla. Dec. 8, 2015)). “Accordingly, ‘[c]ourts have found control by a parent corporation over documents held by its subsidiary, by a subsidiary corporation over documents held by its parent, and by one sister corporation over documents held by another sister corporation.’ ” In re Sergeeva, No. 113CV03437SCJRGV, 2013 WL 12169388, at *8 (N.D. Ga. Nov. 22, 2013), objections overruled, No. 1:13-CV-3437-LMM-RGV, 2015 WL 12866970 (N.D. Ga. Feb. 6, 2015) (quoting S.E.C. v. Credit Bancorp., Ltd., 194 F.R.D. 469, 472 (S.D.N.Y. 2000)). Further, “the legal right to obtain documents requested upon demand” may be established where affiliated corporate entities—who claim to be providers of complimentary and international financial services—have actually shared responsive information and documents in the normal course of their business dealings.” Sergeeva, 834 F.3d at 1201.

The question of control becomes an inquiry of fact, rather than of law, and “the particular form of the corporate relationship does not govern whether [a corporation] controls documents.” Sergeeva, 2013 WL 12169388, at *8 (alteration added) (quoting Credit Bancorp, Ltd., 194 F.R.D. at 471). “In the corporate context, then, control ‘rests on a determination of whether the [respondent] has practical and actual managerial control over, or shares such control with, its affiliate, regardless of the formalities of corporate organization.’ ” Id. (quoting In re Uranium Antitrust Litig., 480 F. Supp. 1138, 1145 (N.D. Ill. 1979)). Finally, the “party seeking production of documents bears the burden of establishing the opposing party's control over those documents.” Id. (quoting Camden Iron & Metal, Inc. v. Marubeni Am. Corp., 138 F.R.D. 438, 441 (D.N.J. 1991)).

Verfruco U.S. claims that it is a “small company,” handling sales of avocado products with only three employees and one office in Coral Gables, Florida. [ECF Nos. 30 at 13; 32 at 2-3]. Verfruco U.S. contends that it is a separate and distinct entity from Verfruco Mexico, Freshcourt, Novafoods, and FI Avocados. [ECF No. 23]. Verfruco U.S. further states, “[p]utting aside corporate connections, ... [G]onzalez's Application incorrectly seeks documents from Mexican Companies that appear to be the parent companies of Verfruco U.S....” [Id. at 7-8].

Verfruco U.S. proffers that it is not merely an agent of the Mexican Companies, and “as admitted by [ ] Gonzales in his § 1782 Application, [it] has preserved some semblance of independence’ from the Mexican companies.” [Id.]. Relying on this, Verfruco U.S. asserts that Gonzalez has failed “to meet his burden to demonstrate that the documents requested from Verfruco U.S. are in the control of Verfruco U.S. and not the parent Mexican [C]ompanies, and due to Verfruco U.S. appearing to be a subsidiary of one or more of the Mexican [C]ompanies based on [ ] Gonzalez's § 1782 Application, ...” the Court should grant the Motion to Quash. [Id. at 8].

*7 Verfruco U.S.' interpretation of Gonzalez's Declaration and the use of “it appears” to describe the relationship between the Mexican Companies and itself is disingenuous. Verfruco U.S. should be able to assert with certainty whether it is a subsidiary company of the Mexican Companies and not just whether “it appears” to be so. Nevertheless, even if Verfruco U.S. is a subsidiary or a distinct legal entity from Verfruco Mexico, Freshcourt, FI Avocados, and Novafoods, it is not precluded from having “practical control” over information which may be in the physical possession of the Mexican Companies.

“[A] subsidiary has access to and control over documents held by a foreign parent corporation, particularly when there is a close working relationship on a common transaction and the subsidiary could easily obtain the documents when it is in its interest to do so.” Batista, 2015 WL 10550409, at *2 (quoting Costa, 277 F.R.D. at 472); see also Cooper Indus. v. British Aerospace Corp., 102 F.R.D. 918, 919 (S.D.N.Y. 1984) (finding it was “inconceivable” that subsidiary lacked control over parent's materials relevant to its business of marketing and servicing parent's aircraft). In this regard, “a corporation could not avoid producing responsive documents simply by claiming that they belonged to a separate, albeit affiliated corporation.” Carter v. City of Montgomery, Ala., No. 2:15-CV-555 (RCL), 2019 WL 2110519, at *2 (M.D. Ala. May 14, 2019).

In fact, “[s]ome cases have found that certain subsidiaries have adequate control of the parent's documents ... where the subsidiary serves as a marketer, distributor, or servicer of the parent's product.” Lindholm v. BMW of N. Am., LLC, No. 3:15-CV-03003-RAL, 2016 WL 452315, at *4 (D.S.D. Feb. 5, 2016); see, e.g., Choice-Intersil Microsystems, Inc. v. Agere Sys., Inc., 224 F.R.D. 471, 472-73 (N.D. Cal. 2004). Among the factors a court may analyze to determine whether a party has “control” over documents in the possession of nonparty affiliates are: “(1) the corporate structure of the party and the nonparties; (2) the nonparties' connection to the transaction at issue in the litigation; and (3) the degree to which the nonparties benefit from the outcome of the litigation.” Costa, 277 F.R.D. at 471; Sanho Corp., 2020 WL 4346881, at *11.

Here, Gonzalez's Declaration supports the conclusion that Verfruco U.S. has the practical ability, if not the legal right, to obtain the documents he requested. See Sergeeva, 834 F.3d at 1201; see also Costa, 277 F.R.D. at 473 (plaintiffs offered proof that the domestic defendants and the foreign affiliates had significant “financial and operational interactions” specifically related to the transaction at issue, and thus, the Court found an adequate evidentiary basis to conclude that it was “unlikely that [d]efendants [did] not have access to and the ability to obtain documents in the possession of their Bahamian affiliates”). Verfruco U.S. provides no proof otherwise.

According to Gonzalez's declaration, all four Mexican Companies and Verfruco U.S. share a common ownership. [ECF No. 1-1]. Gonzalez asserts that the Brothers own 97% of Verfruco U.S. and gave Gonzalez a 3% share ownership stake, although they represented that they would respect his 8% interest in “the business as whole.” [Id. ¶ 23]. Gonzalez claims that the financial and corporate management of Verfruco U.S. has always been the responsibility of the Brothers. [Id. ¶ 27]. Freshcourt is owned and/or controlled by the Brothers or proxies appointed by them and 40% of Novafoods' shares are owned by one of the Brothers' proxies as a “manager-of-record.” [Id. ¶¶ 31, 34]. The Brothers also collectively own about 35% of Verfruco Mexico and are managers-of-record. [Id. ¶¶ 9,12]. Verfruco U.S. and Freshcourt, which are both primarily owned by the Brothers, own about 30% and 15% of FI Avocados, respectively. [Id. ¶¶ 43-44, 46].

*8 Gonzalez also essentially contends that Verfruco U.S. and the four Mexican Companies form a business group through which Verfruco U.S. receives most of the revenue. [Id. ¶¶ 53-55]. Corroborating this, Verfruco Mexico is listed on Verfruco U.S.' website[5] and both of these companies are listed on Freshcourt's website.[6]

Specifically, Verfruco Mexico is listed under the “Mexico” portion of the “Contact Us” section of Verfruco U.S.' website as follows: “Verfruco de México S de RL de CV[,] Carretera Uruapan Pátzcuaro 1058-D[,] Villa Uruapan[,] Uruapan, Michoacán, 60120[;] contact@verfruco.com ....” On Freshcourt's website where it states, “CONTACT WORLDWIDE” and then “Headquarter USA[,]” the address for “FRESHCOURT USA” is listed as 2525 Ponce de Leon Boulevard, #300, Coral Gables, Florida 33134. Verfruco U.S.' has the same address listed with the Florida Secretary of State. [ECF No 22-1].

Freshcourt's website also states that “Juan Molano” is the “Director of Sales and Product Management at Verfruco Foods Inc/Freshcourt[,]” and Juan Molano's Declaration states that he is the Director of Sales and Product Management for Verfruco U.S. [ECF No. 13-2 ¶¶ 1-3]. Freshcourt also lists “Mark Schweihs” as “VP Sales and Production-North America at Verfruco de Mexico.”

According to Gonzalez, Verfruco U.S. has also registered in its own name, the trademarks for Freshcourt and Verfruco Mexico without receiving any royalties. [ECF No. 1-1 ¶¶ 56-57]. Gonzalez also asserts that, despite the Brothers promise to maintain his 8% ownership interest in Verfruco Mexico, they transferred all of Verfruco Mexico's equipment, clientele, and know-how to Freshcourt and its real estate properties to Novafoods. [Id. ¶¶ 29, 30].

As evidence of another commonality, as indicated in both Gonzalez's and Victor Sebastian-Mauricio's Declaration, all four Mexican Companies are in the business of processing fresh avocado and selling avocado and guacamole in Mexico, the United States, and internationally. [ECF Nos. 1-1 ¶¶ 7, 19, 21, 43-44; 13-1 at ¶ 5]. Likewise, as described in the Declaration of Juan Molano, Verfruco U.S. handles sales of avocado products from Mexico to the United States and internationally. [ECF No. 13-2 ¶ 3].

“[W]here a corporate entity has the ability in the ordinary course of business to obtain documents held by another corporate entity” this can warrant a finding of control. Sergeeva, 2013 WL 12169388, at *9 (quoting Credit Bancorp., Ltd., 194 F.R.D. at 472). Accordingly, based on the above, the evidence appears to indicate that Verfruco U.S. shares ownership and a common relationship with Verfruco Mexico, Freshcourt, FI Avocados, and Novafoods, and as a result, has control over documents that may be in physical possession of these Mexican Companies. See Costa, 277 F.R.D. at 473; see also Anz Advanced Techs., 2011 WL 814663, at *9. Therefore, Gonzalez has met his burden of showing that Verfruco U.S. has the requisite “control” over any documents sought by the subpoena which may be in the possession or custody of Verfruco Mexico, Freshcourt, FI Avocados, and Novafoods.

*9 Finally, Verfruco U.S.' reliance on Kestrel Coal Pty. Ltd. V. Joy Glob. Inc., 362 F.3d 401, 404 (7th Cir. 2004), is misplaced. Kestrel directly contradicts Eleventh Circuit precedent. Moreover, in Kestrel, “the Seventh Circuit did not actually determine whether the petitioner may otherwise be entitled to the documents sought under § 1782(a),” and the Seventh Circuit did not actually decide the “key question” of “whether a court can order a domestic corporation to produce the records which it has the right to demand;” because “[t]he Seventh Circuit's analysis focused on the issue of possession, not control.” Matter of De Leon, No. 1:19-MC-15, 2020 WL 1180729, at *5 (S.D. Ohio Mar. 12, 2020) (emphasis in original), appeal dismissed sub nom. In re De Leon, No. 20-3406, 2020 WL 3969865 (6th Cir. May 26, 2020). Because the debated issue here falls within the purview of “control,” and not “possession,” and the Undersigned has concluded that Verfruco U.S. has the legal right to access the documents requested by Gonzalez, Kestrel is inapplicable.

Verfruco U.S. has proposed, as an alternative to quashing the subpoenas, that the Court grant Gonzalez's Application only to the “extent Verfruco U.S. has evidence that Gonzalez seeks among its paper, electronic files, and records in the United States, but deny in part to the extent Verfruco [U.S.] would have to ask a person or entity in Mexico to gather and forward evidence that is located solely in Mexico to the United States.” [ECF No. 32 at 10]. However, Gonzalez's counsel ardently argued against this proposed alternative at the hearing on this matter, and claims Gonzalez never proposed this alternative prior to the hearing. [ECF Nos. 31 at 2 nn.1-3; 31-1]. In any event, because it appears that Verfruco U.S. has the legal right to obtain the documents sought in the subpoena from the Mexican Companies regardless of their physical location, the Undersigned rejects Verfruco U.S.' proposed alternative.

3) The Discretionary Intel Factors

Having determined that Gonzalez has satisfied the prima facie statutory requirements of § 1782, the Court now considers the Intel factors.

The first Intel factor is whether the person from whom discovery is sought is a participant in the foreign proceedings. See Intel, 542 U.S. at 264. “[Section] 1782 discovery is more likely to be justified when the person from whom the discovery is sought is not a participant in the prospective foreign proceeding because nonparticipants in the foreign proceeding may be outside the foreign tribunal's jurisdictional reach. In re Application of Bracha Found., 663 F. App'x 755, 764-65 (11th Cir. 2016). Here, Gonzalez seeks discovery from Verfruco U.S., a United States corporation and a nonparticipant in the prospective foreign proceeding, and as Gonzalez contends, a corporation not subject to the jurisdiction of the Mexican courts. [ECF No 22-1]. Any third-party discovery sought by Mexican courts as to Verfruco U.S. would require assistance of the U.S. courts, either through this very same § 1782 proceeding at issue, or as Gonzalez proffers, through the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, 23 U.S.T. 2555, T.I.A.S 7444. [ECF No. 22 at 9]. Thus, this first factor weighs in Gonzalez's favor.

Under the second Intel factor, the Court takes into account the “nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or [ ] court ... to U.S. federal-court assistance.” Intel, 542 U.S. at 264. Verfruco U.S. once again asserts that because Gonzalez has to first file an action in Mexico, it cannot determine the nature of the foreign court, the character of the proceedings, or that court's receptivity to assistance from this Court. [ECF No. 13 at 10]. The Court finds this argument without merit.

*10 As previously noted, “§ 1782 is not limited to proceedings that are pending or imminent.” Clerici, 481 F.3d at 1333 (quoting Intel, 542 U.S. at 259). Gonzalez has shown that the Mexican litigation for which this discovery is sought, is within reasonable contemplation. Further, Verfruco U.S. has already proffered that Gonzalez may seek the discovery sought here as pre-suit discovery under Mexico's Commercial Code. [ECF No. 13 at 9]. This second factor does not weigh against permitting the requested discovery.

The third Intel factor is whether the discovery request “conceals an attempt to circumvent foreign proof-gathering restrictions or other [foreign] policies[.]” Intel, 542 U.S. at 244-45. Verfruco U.S. asserts that it will submit as a non-party to discovery against it in Mexico, and that Gonzalez's failure to accept this offer shows he is circumventing foreign proof-gathering restrictions. [ECF No. 13 at 9].

As previously noted, section 1782 does not impose a foreign discoverability requirement. See id. at 253; see also NRC Holding, Ltd., 2015 WL 541770, at *2. “[R]equiring that [an applicant] seek the discovery in [the foreign forum] would result in including an exhaustion requirement in section 1782 that is not present.” Gyptec, 2017 WL 6557425, at *7. Accordingly, even if Verfruco U.S. will agree to submit as a non-party for purposes of discovery in Mexico, he is not foreclosed from using this § 1782 proceeding to obtain that evidence. See id. (finding applicant is still entitled to seek discovery pursuant to § 1782 whether or not respondent in § 1782 proceeding has agreed to submit to discovery requests if ordered by the court overseeing prospective foreign litigation).

Further, this case is distinguishable from In re Bio Energias Comercializadora de Energia Ltda., No. 19-CV-24497, 2020 WL 509987, at *1 (S.D. Fla. Jan. 31, 2020). In Bio Energias, the court weighed the third Intel factor in respondent's favor because the parties agreed to be governed by the IBA Rules in Brazilian arbitration and the Court found no evidence presented to indicate that the applicant had complied with that requirement. 2020 WL 509987, at *4. Unlike in Bio Energias, in this case, there appears to be no prior arbitration agreement between the parties, nor any agreement for that matter as to where litigation or discovery should occur.

Notably, Verfruco U.S.' argument with respect to this Intel factor contradicts itself. On the one hand, Verfruco U.S. argues that Gonzalez can obtain the information he seeks in Mexico through a pre-suit discovery tool provided under Mexico's Commercial Code, while at the same time, noting that evidence-gathering is more restrictive in Mexico than in the United States. [ECF Nos. 13 at 9-10, 23 at 2-4]; see also Intel, 542 U.S. at 265 (requiring party opposing discovery to establish that foreign court definitively “denied [ ] access to the same documents that [the requesting party] seeks in its section 1782 discovery application.”).

The Court has already decided, based on Gonzalez's representations, that the information regarding the Mexican Companies is in the “control” of Verfruco U.S. Gonzalez's representations regarding the relationship between the Mexican Companies have not been fully refuted by Verfruco U.S. Gonzalez contends that he does not seek to circumvent foreign proof gathering restrictions, but instead, seeks information within the “control” of Verfruco U.S. regarding the depletion of his assets in Verfruco Mexico.

*11 Verfruco U.S. also contends that, unlike in Sergeeva, Gonzalez has failed to prove that Verfruco U.S. and the Mexican Companies have actually shared responsive information and documents in the normal course of their business dealings and has made prior efforts to seek discovery elsewhere. [Id. at 7-8]. This argument is without merit. There is no requirement under § 1782 that an applicant make prior efforts to seek discovery elsewhere. Further, Gonzalez's entire Declaration is premised on the interrelationship between Verfruco U.S. and the Mexican companies, and the assertion that these companies form one business group through which it “appears that Verfruco U.S. receives the revenues for most of the sales of the business.” [ECF No. 1-1 ¶ 55]. Based on this, it appears to the Court that these companies share responsive information in the normal course of business.

Accordingly, the Court finds that the third Intel factor weighs in favor of Gonzalez.

Under the final factor, the Court must consider whether Gonzalez's discovery request is unduly intrusive or burdensome. See Intel, 542 U.S. at 245. Verfruco U.S. argues that Gonzalez may seek discovery by a request made under Article V, § 2 of its Bylaws. [Id. at 10-11] [citing ECF No. 13-4]. This argument is unpersuasive as Verfruco U.S. has already asserted that it does not have any responsive information within its' “possession.” Verfruco U.S., however, is required by Rule 45 to produce information regarding the Mexican Companies within its' “control.” Finding that Gonzalez should seek this information under Verfruco's Bylaws, would lead to no information at all, which would be an illogical outcome.

Verfruco U.S. also argues that the purpose of this § 1782 proceeding is not aimed at securing discovery, but instead, aimed at pressuring others to buy Gonzalez's stock in the subject entities. [Id. at 11]. In support, Verfruco U.S. relies on emails from Gonzalez to Victor Sebastian-Mauricio, where Gonzalez requests financial information about Verfruco U.S. and the Mexican Companies and discusses selling his shares in those companies and the undervaluation of this stock in those companies. [ECF No. 13 at 3; 13-1 at 3-4, 9]. In light of Gonzalez's declaration otherwise, Verfruco U.S.' claims are merely conjecture, and, in any event, do not appear to show that Gonzalez is attempting to put pressure on others to buy his stock. Instead, these emails appear to support Gonzalez's claims.

Finally, in Verfruco U.S. Supplemental Response it argues that it would be extremely burdensome for Verfruco U.S. to serve as a conduit for any information that comes from Mexico to Florida or for Verfruco U.S. to have to prepare and sit for a deposition in Florida about alleged events and activities in Mexico in which Verfruco U.S. did not participate. [ECF No. 32 at 9]. Based upon Gonzalez's uncontested assertion that the Mexican Companies have shared management and ownership, the burden is the same whether the documents and communications are produced here or in Mexico. Accordingly, obtaining this information would not put an undue burden on Verfruco U.S.

As such, the fourth and final Intel factor weighs in favor of permitting discovery.

1) Application in Accordance with 28 U.S.C. § 1746

Verfruco U.S. argues that Gonzalez's Application was defective because Gonzalez's and Fernando Martinez's declarations [ECF Nos. 1-1, 1-2], stated that the facts set forth in the declarations were based on “knowledge and belief,” rather than “true and correct” as needed to comply with 28 U.S.C. § 1746. [ECF No. 13 at 5]. Section 1746 provides that an unsworn verification executed within the United States must be “in substantially the following form: ... ‘I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).’ ” 28 U.S.C. § 1746.

*12 Section 1746 does not specify that an unsworn verification must be in exactly the form quoted in the statute, but instead only specifics that an unsworn verification must be in substantially that form. See United States v. Proceeds of Certificates of Deposit, No. 03-20526-CIV, 2003 WL 27382011, at *1 (S.D. Fla. July 8, 2003), R. & R. adopted, 2003 WL 27382013 (S.D. Fla. Sept. 17, 2003) (finding that “to the best of my knowledge and belief” in a verification is in substantially the form delineated in § 1746 and is sufficient to subject individual to the penalty of perjury for any mis-statements contained in the verification.); see also United States v. Roberts, 308 F.3d 1147, 1155 (11th Cir. 2002). Here, the declarations were signed under penalty of perjury under the laws of the United States and were substantially in the same form as required under 28 U.S.C. § 1746. Thus, Verfruco U.S.' argument is rejected.

2) Service of Subpoenas

Verfruco U.S. also argues that the subpoenas were improperly served on Verfruco U.S. because they were left at the front desk of the office suites where Verfruco U.S. leases “a room” and were not personally served on Verfruco U.S. in accordance with Federal Rule of Civil Procedure 4(e). [ECF No. 15 at 6]. Verfruco U.S. further contends that the subpoena for testimony was improper because it did not include a witness fee. [Id.]. The issuance of subpoenas with respect to a non-party is governed by Federal Rule of Civil Procedure 45. “Serving a subpoena requires delivering a copy to the named person and, if the subpoena requires that person's attendance, tendering the fees for 1 day's attendance and the mileage allowed by law.” Fed. R. Civ. P. 45(b)(1). A subpoena may also be “served at any place within the United States.” Fed. R. Civ. P. 45(b)(2).

Here, the subpoenas complied with Rule 45 because: (a) they were issued pursuant to a the Court's Order [ECF Nos. 8; 9]; (b) no mileage fee was required as the deposition was going to take place via Zoom; and (c) the Returns of Service Affidavits state the dates, manner of service, and the names of the persons served, i.e., Denise M., a person in charge at the recipient's virtual office located at 2525 Ponce de Leon Blvd., Suite 300, Coral Gables, FL 33134 [ECF Nos. 10; 11; 12]. Verfruco U.S. was also served at its principal place of business. While Victor Sebastian is the registered agent for Verfruco U.S., it appears he could not be served because he does not reside in the United States, and accordingly Denise M., a person in charge of Verfruco U.S.' virtual office was served. [ECF No. 22-1]; In re Application of Inversiones y Gasolinera Petroleos Valenzuela, S. de R.L., No. 08-20378-MC, 2011 WL 181311, at *15 (S.D. Fla. Jan. 19, 2011) (“the Applicants had a good faith belief that Esso's business practices which formed the basis for the criminal investigation in Honduras were controlled from its “Coral Gables headquarters’ ”). Therefore, the Undersigned finds that the subpoenas were properly served.

Alternatively, Verfruco U.S. proffers that this § 1782 proceeding should be stayed because: (1) Gonzalez solely seeks information about the Mexican Companies and activity that has occurred in Mexico; (2) Gonzalez has a statutory right to obtain a court order in Mexico requiring the disclosure of information that he seeks regarding the Mexican Companies, which will obviate the need for discovery sought here; and (3) requiring Gonzalez to first proceed in Mexico would avoid the risk that he is using this proceeding to circumvent Mexico's discovery procedures. [ECF No. 13 at 12-13]. The Court has already addressed these arguments and found them to be without merit. This argument seeks to impose an exhaustion requirement in § 1782, which does not exist.

*13 Further, Verfruco U.S.' reliance on In re Application of Alves Braga, 789 F. Supp. 2d 1294, 1307-08 (S.D. Fla. 2011), is misplaced. None of the factors considered by the Court in Braga are present here: (a) there are no allegations that Gonzalez has conducted any illegal or improper discovery in any other forum; (b) if Gonzalez obtained the evidence he seeks in this § 1782 proceeding, the Mexican court may be receptive to it as Verfruco U.S. has already indicated some of this discovery may be sought under Mexico's Commercial Code; and (c) there is no foreign proceeding underway, at present, which would warrant international abstention. Grupo Mexico Sab De CV, No. CV314MC00073GBH, 2014 WL 12691097, at *3 (N.D. Tex. Oct. 17, 2014) (finding under Intel factors that there was no evidence to suggest that a Mexican court is hostile to U.S. federal courts' assistance under § 1782(a)); see also In re Application of Grupo Qumma, No. M 8-85, 2005 WL 937486, at *3 (S.D.N.Y. Apr. 22, 2005) (finding no authoritative evidence that a Mexican court would reject additional evidence).

Staying this case would contradict the express purpose of § 1782, and therefore, a stay of this proceeding is not warranted. See In re Ferrer, No. 18-20226-CIV, 2018 WL 3240010, at *12 (S.D. Fla. July 3, 2018), on reconsideration in part, 2018 WL 4575043 (S.D. Fla. Sept. 5, 2018).

In accordance with the foregoing, it is

ORDERED and ADJUDGED that Respondent's Motion to Vacate [ECF No. 13] and Motion to Quash [ECF No. 15] are DENIED. Verfruco U.S. shall produce all documents within its possession, custody, or control and provide all testimony about information in its possession, custody, or control responsive to the subpoenas.

DONE AND ORDERED at Miami, Florida on this 14th day of April, 2021.