In re Ex Parte Application of Aguila Energia e Participações Ltda.
In re Ex Parte Application of Aguila Energia e Participações Ltda.
2023 WL 7001445 (S.D.N.Y. 2023)
August 22, 2023
Cave, Sarah L., United States Magistrate Judge
Summary
The court did not consider the issue of ESI as Aguila had not established that JPMorgan USA had possession, custody, or control over the requested discovery. The Magistrate Judge issued a report and recommendation in an abundance of caution, recommending that the application be denied.
Additional Decisions
IN RE Ex parte Application of AGUILA ENERGIA E PARTICIPAÇÕES LTDA., Applicant,
For an Order Pursuant to 28 U.S.C. § 1782 to Take Discovery for Use in Contemplated Proceedings in the Federative Republic of Brazil
For an Order Pursuant to 28 U.S.C. § 1782 to Take Discovery for Use in Contemplated Proceedings in the Federative Republic of Brazil
CIVIL ACTION NO. 22 Misc. 228 (RA) (SLC)
United States District Court, S.D. New York
Signed August 22, 2023
Cave, Sarah L., United States Magistrate Judge
REPORT & RECOMMENDATION[1]
*1 TO THE HONORABLE RONNIE ABRAMS, United States District Judge:
I. INTRODUCTION
Applicant Aguila Energia e Participações Ltda. (“Aguila”) has submitted an ex parte application for an order pursuant to 28 U.S.C. § 1782 to serve a subpoena on J.P. Morgan Chase & Co. (“JPMorgan USA”) to obtain discovery for use in three contemplated legal proceedings: (i) a civil lawsuit brought by Aguila against Banco J.P. Morgan S.A. (“JPMorgan Brazil”), (ii) an administrative complaint filed by Aguila with the Brazilian General Accounting Office (also known as the Tribunal de Contas da União (“TCU”)) seeking an investigation of JPMorgan Brazil and Petroleo Brasileiro S.A. (“Petrobras”), and (iii) a criminal complaint filed by Aguila with the Brazilian Federal Prosecutor's Office (also known as the Ministério Público Federal (“MPF”)) seeking an investigation of JPMorgan Brazil and Petrobras (together, the “Contemplated Proceedings”). (ECF No. 1 (the “Application”)). Specifically, Aguila seeks from JPMorgan USA the production of documents relating to Aguila's claims that, inter alia, JPMorgan Brazil and Petrobras engaged in fraud in failing to complete sales of assets (the “Assets”) to Aguila in connection with an auction of oil and gas concessions (i.e., land from which oil and natural gas can be obtained) and facilities in the Brazilian state of Bahia. (Id. at 4–9; see ECF No. 4-1).
For the reasons set forth below, I respectfully recommend that the Application be DENIED.
II. BACKGROUND
A. Factual Background
Aguila is a Brazilian company that provides services and develops projects related to oil and natural gas. (ECF No. 1 at 11; ECF No. 5). Petrobras is a Brazilian company that, inter alia, produces and refines oil and natural gas. (ECF No. 1 at 10). Aguila alleges that, in November 2020, Petrobras publicly announced that it would sell certain of its assets in Bahia to a private company at auction, with JPMorgan Brazil acting as its financial advisor. (Id. at 15–16). Aguila claims that, in August 2021, it made the highest bid at the auction and JPMorgan Brazil selected Aguila as the winner of the auction. (Id. at 5). Aguila alleges that in the months that followed during negotiations, however, JPMorgan Brazil issued a long series of requests for financial documents and information from Aguila designed to disrupt the transaction. (Id. at 6). According to Aguila, JPMorgan Brazil's requests became more and more unreasonable, culminating in JPMorgan Brazil's request for an “irrevocable debt and equity commitment letter,” which Aguila claims Petrobras has never required of a bidder “so early in the process.” (Id.) In February 2022, when Aguila failed to comply with that request, JPMorgan Brazil and Petrobras disqualified Aguila's bid. (Id.)
After disqualifying Aguila's bid, Petrobras reopened the auction. (ECF No. 1 at 6). Aguila bid on the Assets a second time, and again made the highest bid. (Id. at 16). Aguila alleges that, during a Microsoft Teams meeting in March 2022, “Petrobras and JPMorgan Brazil agreed that Aguila offered the best price” for the Assets. (Id.) At the same meeting, Aguila agreed to produce within five business days additional financial documents to JPMorgan Brazil in connection with the transaction. (Id. at 17).
*2 Aguila claims that, following the March 2022 meeting, Petrobras and JPMorgan Brazil again acted in concert to disrupt the transaction so that they could sell the Assets to another party. (ECF No. 1 at 17–20). Specifically, Aguila claims that JPMorgan Brazil, acting on behalf of Petrobras, unilaterally imposed a stricter deadline of one business day for production of the requested financial documents, and then did not respond to Aguila's multiple attempts to contact them. (Id. at 17). In April 2022, Aguila commenced a proceeding in Rio de Janeiro State Court (the “Brazilian Court”) to compel Petrobras to produce a copy of its recording of the March 2022 Microsoft Teams meeting and to refrain from continuing negotiations with other bidders for the Assets. (Id. at 18). Although the Brazilian Court issued orders at least partially in Aguila's favor in April 2022 and June 2022 (id. at 18–20; ECF Nos. 1-12; 1-14), Aguila alleges that, in the context of that litigation, Petrobras informed Aguila that it had again been disqualified as a bidder for the Assets. (ECF No. 1 at 18). Overall, Aguila claims that it was “twice used as bait” by Petrobras and JPMorgan Brazil, and that its two winning bids were unlawfully disqualified. (Id. at 20).
B. The Application
On August 22, 2022, Aguila filed the Application seeking an order permitting it to serve a subpoena on JPMorgan USA for documents relating to its claims against Petrobras and JPMorgan Brazil. (ECF No. 1; see ECF No. 4). Aguila alleges that JPMorgan Brazil is a subsidiary of JPMorgan USA. (ECF No. 1 at 3 n.1). Aguila argues that JPMorgan USA—although not an anticipated party to the Contemplated Proceedings—possesses discovery that will “provide key elements” to the anticipated TCU and MPF investigations and that will be “essential” to Aguila's civil claims against Petrobras and JPMorgan Brazil, its subsidiary. (Id. at 13). Chiefly, Aguila seeks documents and communications among and between individuals from Aguila, Petrobras, and JPMorgan Brazil involving the auction for the Assets and subsequent negotiations, spanning the timeframe from February 25, 2021 to the present. (ECF No. 4-1 at 13–14).
To support its claim that JPMorgan USA has “possession, custody, or control” over relevant documents, Aguila cites emails from JPMorgan Brazil with the domains “@jpmorgan.com” and “@jmpchase.com,” that disclaimers in those emails “link to the jpmorgan.com website,” and “official letters and emails were signed as ‘J.P. Morgan’ or ‘J.P. Morgan Team.’ ” (ECF No. 1 at 8–9, 12). Therefore, Aguila argues, “it is reasonable to assume JPMorgan USA has custody in or control from this District over the requested communications, documents and a recording of the March 30, 2022 Microsoft Teams meeting,” and “Aguila has strong indications that JPMorgan USA is in possession of the evidence it seeks.” (Id. at 9–10, 12-13).
III. DISCUSSION
A. Legal Standard
Under 28 U.S.C. § 1782(a), a federal district court may order any person or entity who “resides or is found” in the district “to produce a document or other thing for use in a proceeding in a foreign international tribunal ... upon the application of any interested person.” “It 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 45(c)(3).” In re Abraaj Inv. Mgmt. Ltd., No. 20 Misc. 229 (VSB), 2023 WL 2674752, at *2 (S.D.N.Y. Mar. 29, 2023) (quoting In re Hornbeam Corp., 722 F. App'x 7, 11 (2d Cir. 2018) (summary order)).[2]
The party making the application must demonstrate the following statutory requirements: “(1) the person from whom discovery is sought resides (or is found) in the district of the district court to which the application is made, (2) the discovery is for use in a foreign proceeding before a foreign or international tribunal, and (3) the application is made by a foreign or international tribunal or any interested person.” Guo v. Deutsche Bank Sec., 965 F.3d 96, 102 (2d Cir. 2020).
*3 Unless the court prescribes otherwise, “the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure. 28 U.S.C. § 1782(a). This includes the requirement that the requested discovery be “in the responding party's possession, custody, or control.” Fed. R. Civ. P. 23; see In re Mun, No. 22 Misc. 163 (DLC), 2022 WL 17718815, at *2 (S.D.N.Y. Dec. 15, 2022). With respect to connected corporate entities, a parent has control over a subsidiary for discovery purposes when, for example, “the parent is ‘responsible for the compliance, risk management, governance, and financial reporting operations’ of the subsidiary, and there was ‘substantial overlap between the management executives of the parent and the subsidiary.’ ” In re Liverpool Ltd. P'ship, No. 21 Misc. 392 (AJN), 2021 WL 5605044, at *3 (S.D.N.Y. Nov. 4, 2021) (quoting Motorola Credit Corp. v. Uzan, 02 Civ. 666 (JSR), 2013 WL 6098388, at *3 (S.D.N.Y. Nov. 20, 2013)). A parent may also have control over a subsidiary “if they share employees, facilities, office space, and utilize common practices and forums.” Id. (quoting In re Vivendi, S.A. Sec. Litig., 02 Civ. 5571 (RJH) (HBP), 2009 WL 8588405, at *4 (S.D.N.Y. July 10, 2009)). The § 1782 applicant bears the burden of establishing control. Id.
Provided that the statutory requirements are met, the court is “free to grant discovery in is discretion.” Optimal Invs. Servs., S.A. v. Berlamont, 773 F.3d 456, 460 (2d Cir. 2014). Although the district court's discretion is broad, it must be exercised “in light of the twin aims of the statute: ‘providing efficient means of assistance to participants in international litigation in our federal courts and encouraging foreign countries by example to provide similar means of assistance to our courts.’ ” Mangouras v. Boggs, 980 F.3d 88, 97 (2d Cir. 2020). The Supreme Court has identified four discretionary factors (the “Intel Factors”) that a court considers when ruling on a § 1782 application: “(1) whether the person from whom discovery is sought is a participant in the foreign proceeding, in which case the need for Section 1782(a) aid generally is not as apparent; (2) 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; (3) whether the request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States; and (4) whether the request is unduly intrusive or burdensome.” Id. at 97–98 (citing Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264–65 (2004)).
As relevant here, § 1782 applications may be granted where the foreign proceeding has not yet been commenced. The contemplated foreign proceeding need not be “pending” or “imminent”; “rather, a § 1782 applicant ‘must present to the district court some concrete basis from which it can determine that the contemplated proceeding is more than just a twinkle in counsel's eye.’ ” Hornbeam, 722 F. App'x at 9 (quoting Certain Funds, Accts. and/or Inv. Vehicles v. KPMG, L.L.P., 798 F.3d 113, 123–24 (2d Cir. 2015)).
B. Application
1. The statutory requirements are met.
Aguila argues that it has met the § 1782 statutory requirements. (ECF No. 1 at 25–29). The Court agrees: JPMorgan USA is headquartered and thus “is found” in this District; the discovery sought is “for use” in the Contemplated Proceedings in Brazil, a foreign jurisdiction; and the Application is made by Aguila, an interested party to the Contemplated Proceedings, in particular the contemplated civil action against JPMorgan Brazil and Petrobras. (See id.; ECF No. 3).
2. Aguila has not demonstrated that JPMorgan USA possesses relevant evidence.
As noted, for Aguila to establish entitlement to a grant of discovery under § 1782, it must establish that JPMorgan USA has possession, custody, or control of the subject discovery. (See § III.A, supra). Aguila has not met this burden.
*4 Aguila seeks documents from JPMorgan USA solely relating to the alleged activities and communications of its subsidiary, JPMorgan Brazil, and Petrobras. To support its position that JPMorgan USA possesses relevant discovery, Aguila notes that JPMorgan USA is the parent corporation of JPMorgan Brazil. (ECF No. 1 at 3 n.1). A parent-subsidiary relationship, however, is not dispositive of control. Indeed, other courts in this District have denied similar § 1782 applications seeking from JPMorgan USA discovery in the possession of its foreign subsidiaries. See Mun, 2022 WL 17718815, at *2–3 (denying § 1782 application seeking from JPMorgan USA discovery in the possession of its English subsidiary, which acted as financial advisor for a Bermuda transaction, and holding that, “[b]ecause JPMorgan [USA]’s subsidiary controls and possesses the documents and not JPMorgan [USA] itself, the Petitioners’ request to obtain this discovery from JPMorgan [USA] fails under the Federal Rules of Civil Procedure”); Liverpool, 2021 WL 5605044, at *3 (denying § 1782 application seeking from JPMorgan USA discovery in the possession of its Japanese subsidiary, and holding that, “[b]ecause Petitioner has not shown that JP[Morgan USA] ‘exercises operational control’ over [its Japanese subsidiary] or that the two ‘operate as one entity,’ the Court cannot conclude that JP[Morgan USA] has control, possession, or custody over the requested discovery”); see also In re FourWorld Event Opportunities Fund, L.P., No. 22 Misc. 330 (JPO), 2023 WL 3375140, at *3 (S.D.N.Y. May 11, 2023) (granting JPMorgan USA's motion to quash subpoenas under § 1782 because “Respondent does not have possession, custody, or control of the discovery in question”).
Aguila's argument that JPMorgan Brazil's email communications with Aguila were sent from the domains “@jpmorgan.com” and “@jpmchase.com” (ECF No. 1 at 8, 12–13, 16) similarly fails to demonstrate that JPMorgan USA had possession, custody, or control over JPMorgan Brazil's documents within the meaning of the Federal Rules of Civil Procedure. The Application does not explain how these domains are connected to JPMorgan USA. Even if JPMorgan USA hosted emails of employees of JPMorgan Brazil, Aguila does not explain how that would establish that JPMorgan USA exercises operational control over JPMorgan Brazil. Likewise, Aguila's allegation that one of JPMorgan USA's American affiliates—JP Morgan Chase Bank, N.A.—is the custodian bank for certain of Petrobras’ depositary shares (id. at 12) does not establish that JPMorgan USA controls Petrobras. Aguila's assertions that it is “reasonable to assume” JPMorgan USA has possession, custody, or control over relevant discovery, and that Aguila has “strong indications” of such control (id. at 8–9, 12–13), are speculative statements that do not establish control. Indeed, in Mun, the court denied the § 1782 application for discovery from JPMorgan USA even though the applicant made a stronger showing than Aguila has here by highlighting that JPMorgan USA's Chief Compliance Officer led compliance for the foreign subsidiary and that the two entities shared directors and officers. Mun, 2022 WL 17718815, at *3. Likewise, in Liverpool, the court found that JPMorgan USA could not be ordered to produce information in the possession of a foreign subsidiary based solely on allegations that it “[held] itself out to the public as significantly intertwined” with the foreign subsidiary, “provide[d] financial services” in the foreign jurisdiction through the subsidiary, and shared an officer. 2021 WL 231449, at *3. Here, Aguila's allegations do not even rise to the level deemed inadequate to establish JPMorgan USA's possession, custody, or control over its foreign subsidiary in Mun and Liverpool.
Accordingly, because Aguila has not met its burden of establishing that JPMorgan USA has possession, custody, or control over the requested discovery, I respectfully recommend that the Application be DENIED.
3. Only two of the discretionary factors favor granting the Application.
Because Aguila has not established possession, custody, or control, “[t]he Court's analysis need not venture further.” FourWorld, 2023 WL 3375140, at *3. If the Court were to proceed, however, only two of the discretionary factors weigh in Aguila's favor.
a. The first Intel Factor
The first Intel Factor contemplates whether “the person [or entity] from whom discovery is sough is a participant in the foreign proceeding, in which case the need for Section 1782(a) aid generally is not as apparent.” Mangouras, 980 F.3d 88 at 97. Aguila alleges that JPMorgan USA will not be a party to the Contemplated Proceedings, which solely concern the alleged conduct of JPMorgan Brazil and Petrobras. (ECF No. 1 at 30–31). Although JPMorgan USA is the alleged parent company of JPMorgan Brazil—indeed an anticipated party to the Contemplated Proceedings—this does not alter the analysis because “[p]arent companies of non-U.S. participants in foreign proceedings are separate legal entities for purposes of Section 1782 applications.” In re Pidwell, No. 21 Misc. 166 (ALC) (KHP), 2022 WL 192987, at *5 (S.D.N.Y. Jan. 21, 2022) (citing In re Top Matrix Holdings Ltd., No. 18 Misc. 465 (ER), 2020 WL 248716, at *5 (S.D.N.Y. Jan. 16, 2020)); see In re Evenstar Master Fund SPC, No. 20 Misc. 418 (CS) (JCM), 2021 WL 3829991, at *11 (S.D.N.Y. Aug. 27, 2021) (“entities who are ‘participants’ in foreign proceedings are ‘separate legal entities from their subsidiaries and affiliates for the purpose of Section 1782 motions’ ”) (quoting Top Matrix, 2020 WL 248716, at *5). Thus, JPMorgan is not a “participant” in the Contemplated Proceedings, and the first Intel Factor weighs in favor of granting the Application.
b. The second Intel Factor
*5 The second Intel Factor concerns “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.” Mangouras, 980 F.3d at 97–98. “Absent specific directions to the contrary from a foreign forum, the statute's underlying policy should generally prompt district courts to provide some form of discovery assistance,” and a court “should deny discovery on the basis of lack of receptiveness only where it is provided with ‘authoritative proof that the foreign tribunal would reject evidence obtained with the aid of section 1782.’ ” In re Atvos Agroindustrial Investimentos S.A., 481 F. Supp. 3d 166, 176–77 (S.D.N.Y. 2020) (quoting Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d 1095, 1100–02 (2d Cir. 1995)).
This factor weighs in Aguila's favor because “[t]here is no evidence before this Court suggesting that Brazil or Brazilian Courts are unreceptive to requests by U.S. persons for judicial assistance [and] Courts in this district recently have granted requests for section 1782 discovery for use in Brazilian proceedings.” Ex parte Abdalla, No. 20 Misc. 727 (PKC), 2021 WL 168469, at *5 (S.D.N.Y. Jan. 19, 2021) (collecting cases). Further, Aguila has submitted a declaration from its Brazil counsel, which states that “there is no indication that a Brazilian court or authority would not be receptive to the documentary and testimonial evidence sought by Aguila through its Application. Such evidence is likely admissible in the [ ] Contemplated Proceedings.” (ECF No. 3 ¶ 51). This, too, supports that the second Intel Factor is in Aguila's favor. See Associacão dos Profissionais dos Correios v. Bank of N.Y. Melon Corp., No. 22 Misc. 132 (RA) (KHP), 2022 WL 4955312, at *7 (S.D.N.Y. Oct. 4, 2022) (holding that the second Intel Factor weighed in the applicant's favor where the applicant “submitted an affidavit from Brazil counsel explaining that the Brazilian Court would be receptive to discovery obtained through [the] Section 1782 process”), remanded on other grounds by, 2023 WL 3166357, at *1; Matter of Degens, No. 20 Misc. 237 (JGK) (RWL), 2020 WL 4252725, at *4 (S.D.N.Y. July 24, 2020) (same, citing to Brazil counsel's declaration to support that “[t]here is no reason to believe the Brazilian Court would not be receptive to evidence gathered under § 1782, and no Brazilian rule, policy, or law prohibits or discourages the Brazilian Court from considering such evidence”).
c. The third Intel Factor
The third Intel Factor asks “whether the request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States.” Mangouras, 980 F.3d at 98. Circumvention exists if the application is an attempt to evade discovery procedures in the foreign jurisdiction or where the record indicates that the application is otherwise a “bad faith endeavor to misuse Section 1782.” In re Bouka, 637 F. Supp. 3d 74, 90 (S.D.N.Y. 2022); see In re Hansainvestment Hanseatische Inv.-GmbH, 364 F. Supp. 3d 243, 251 (S.D.N.Y. 2018) (holding that the third Intel Factor weighed in the applicant's favor because “the Court is not persuaded that Applicants have engaged in any improper or bad faith evasion of German procedures”).
Here, by seeking from JPMorgan USA discovery concerning the involvement of JPMorgan Brazil and Petrobras in a Brazilian transaction without demonstrating that JPMorgan USA has a connection to the transaction or exercises sufficient control over those entities—and without having commenced the Contemplated Proceedings or unsuccessfully sought the subject documents from the entities themselves—suggests that Aguila is on a fishing expedition and may be misusing the § 1782 device. Thus, the third Intel Factor weighs against Aguila.
d. The fourth Intel Factor
*6 Finally, the fourth Intel Factor considers “whether the request is unduly intrusive or burdensome.” Mangouras, 980 F.3d at 98. Whether the request is “unduly intrusive or burdensome” is measured by the standards of Rule 26 of the Federal Rules of Civil Procedure. In re XPO Logistics, Inc., No. 15 Misc. 205 (LGS), 2017 WL 6343689, at *4 (S.D.N.Y. Dec. 11, 2017) (citing Mees v. Buiter, 793 F.3d 291, 302 (2d Cir. 2015)). As applied to § 1782 applications, Rule 26 “contemplates that discovery requests be tailored to seek information relevant to the parties’ claims and defenses and proportional to the needs of the case.” Associacão, 2022 WL 4955312, at *8. The “proportionality analysis depends on the relevance of the information sought—and, in the case of a § 1782 petition, relevance is assessed with regard to the foreign proceeding.” Catalyst Managerial Servs., DMCC v. Libya Africa Inv. Portfolio, 680 F. App'x 37, 39 (2d Cir. 2017) (summary order).
Here, although Aguila seeks discrete categories of documents narrowly tailored to the relevant timeframe—February 2021 to the present—that directly concern its allegations against JPMorgan Brazil and Petrobras (ECF No. 4 at 5, 13–14), for the reasons discussed above, Aguila has not shown that JPMorgan USA has possession, custody, or control of these documents. Therefore, Aguila's requests are unduly burdensome and intrusive and this factor also weighs against Aguila. See In re Lloreda, 323 F. Supp. 3d 552, 560 (S.D.N.Y. 2018) (denying § 1782 application, and holding that “Petitioner's discovery request is unduly intrusive and burdensome. Petitioner has made no showing that [the party from whom discovery is sought] has custody, control, or possession of the documents he seeks”).
IV. CONCLUSION
Accordingly, for the reasons sets forth above, I respectfully recommend that the Application be DENIED.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days when service is made under Fed. R. Civ. P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed. R. Civ. P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Abrams.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).
Footnotes
Historically, courts in this District have treated applications made pursuant to 28 U.S.C. § 1782 as non-dispositive motions that Magistrate Judges have the authority to hear and determine by order, on referral, pursuant to 28 U.S.C. § 636(b)(1)(A) and Fed. R. Civ. P. 72. See In re Crédito, No. 22 Misc. 273 (JGK) (BCM), 2023 WL 5016497, at *1 n.1 (S.D.N.Y. May 24, 2023); In re Ulmans, No. 23 Misc. 23 (GHW) (VF), 2023 WL 3853703, at *2 (S.D.N.Y. Apr. 20, 2023) (collecting cases), adopted by 2023 WL 3412769 (S.D.N.Y. May 12 2023). The Second Circuit recently held, however, that a Magistrate Judge's order denying a § 1782 application was “nonfinal,” and remanded the order to the district court to be “treated as a report and recommendation” for which “appropriate proceedings can be held.” Associacão dos Profissionais dos Correios v. Bank of N.Y. Mellon Corp., No. 22-2865, 2023 WL 3166357, at *1 (2d Cir. Mar. 28, 2023). It is unclear the extent to which the Second Circuit's non-precedential decision in Associacão would govern a Magistrate Judge's decision granting—in whole or in part—a § 1782 application, as opposed to a dispositive denial, as was the case in Associacão. See In re Niedbalski, No. 21 Misc. 747 (JGK) (BCM), 2023 WL 5016458, at *1 n.1 (S.D.N.Y. May 8, 2023) (noting the ambiguity), adopted by, 2023 WL 4399003, at *1 (S.D.N.Y. July 7, 2023) (same). Because I recommend that the application be denied—a dispositive ruling—in an abundance of caution I join my fellow Magistrate Judges who have issued reports and recommendations in deference to the Second Circuit's ruling in Associacão. See, e.g., Crédito, 2023 WL 5016497, at *1 n.1; Niedbalski, 2023 WL 5016458, at *1 n.1; Ulmans, 2023 WL 3853703, at *2.
Internal citations and quotation marks are omitted from case citations unless otherwise indicated.