*1 THIS CAUSE is before the Court upon Deponents’ Motion for New Trial to Consider Newly Discovered Evidence, filed December 4, 2023. (DE 56). In the Motion, the Deponents seek a new hearing for the Court to consider new evidence: the filing of a Third Amended Complaint in the Southern District of Florida (“SDNY”) in a related case. The Deponents maintain that should I reopen the proceedings in this case to consider the new evidence, I would vacate my prior order affirming Magistrate Judge Matthewman's order granting discovery to the Petitioner under 28 U.S.C. § 1782. (DE 54). This Matter has been fully briefed by numerous parties, including Petitioner Orthogen, the Deponents Edward and Yolanda Capla, and Intervening Parties Douglas Schottenstein, M.D. and Schottenstein Pain and Neuro, PLLC, d/b/a Spine Medicine. (see DE 59, 60, 61, 64, 65, 66, 71, 74, 78, 81). For the following reasons, the Motion is denied.

I. Factual and Procedural Background

Much of the procedural and factual background of this case has been retold numerous times, particularly in Judge Matthewman's detailed Order Overruling Objections to Subpoenas Duces Tecum and Denying Motion to Quash. (DE 38). For the sake of brevity, I repeat only the necessary facts for the purpose of deciding this Motion.

On May 4, 2023, Petitioner Orthogen International GmbH (“Orthogen”) filed an Ex Parte Application for an Order Pursuant to 28 U.S.C. § 1782 seeking to conduct discovery in a foreign proceeding that it is contemplating filing in Germany. Orthogen filed the Petition here, in the Southern District of Florida, after a lawsuit had been filed against it in SDNY.

Orthogen is the licensor of a drug regimen known as Regenokine. It licenses the ability to administer the drug program to participating doctors, and it jointly licensed such ability to Dr. Schottenstein, as the treating physician, and Edward Capla, as the administrator engaged in the practice, beginning in 2012. Eventually, the parties converted the license agreement to an indefinite continuous term requiring no renewal, which could only be revoked on a for-cause basis. When Orthogen revoked the license with Dr. Schottenstein and replaced him in its agreement with Edward Capla with a different doctor, Dr. Schottenstein sued. That lawsuit was filed in SDNY and alleges fraud and a conspiracy to commit fraud, naming the Capias and Orthogen as the defendants, among others.

In its Petition, Orthogen sought to depose Yolanda and Edward Capla. It claimed that Dr. Schottenstein's SDNY complaint, as well as an accompanying affidavit, revealed that it was possibly defrauded of “millions of dollars.” The affidavit cited “[t]ens of millions of dollars of revenue” that had been paid to Dr. Schottenstein and Mr. Capla from 2014 to 2020, and that the two had “in excess of 3,500” Regenokine patients during that time. (DE 3). Orthogen claimed that these statements undermine the reports submitted to Orthogen by Mr. Capla as to the amount of revenue that they received. Had Mr. Capla reported millions of dollars of revenue, as was now being claimed by Dr. Schottenstein in his SDNY complaint, Orthogen would have received far higher compensation in royalty payments than it actually received. As part of its Petition in this District, Orthogen informed the Court that it sent a demand letter to both Dr. Schottenstein and the Capias. During a telephone call with Dr. Schottenstein's lawyer, counsel informed Orthogen that the statements in the sworn complaint were “incorrect,” that the “correct number is $3 million,” but that “the representation that 3,500 patients were treated with the Regenokine program is likely correct.” (DE 3 at 16). The attorney informed Orthogen that Dr. Schottenstein was not involved in the submission of the reports and affidavits to Orthogen, and he had been assured by Mr. Capla that the reporting was accurate.

*2 Due to the allegations in the SDNY complaint, and the subsequent representations by Dr. Schottenstein's attorney on the phone, Orthogen informed this Court that it intends to file suit against both Dr. Schottenstein and Mr. Capla and assert claims of breach of contract and fraud. However, in order to more fully develop the facts before filing suit in Germany, Orthogen sought to depose the Capias, who live in Palm Beach County. Magistrate Judge William Matthewman, after extensive briefing by both parties and an evidentiary hearing, granted Orthogen's petition. (DE 38). Thereafter, Orthogen objected to the Magistrate's Order. After the Capias rehashed the majority of arguments that had already been raised before the Magistrate, I entered an Order overruling all of their objections to the Magistrate's order and enforcing the subpoenas. (DE 51). Throughout the entirety of this process, the Capias continued to move to stay the taking of their depositions until the Court decided their various motions challenging the Court's findings. On November 30, 2023, I closed the case. (DE 55).

On December 4, 2023—six days after I decided to enforce Petitioner's request for discovery and four days after I closed the case—the Capias filed a Motion for the Court to hold a new hearing on “newly discovered evidence.” The crux of the Capias argument is now that I should reconsider my order enforcing the subpoenas pursuant to § 1782 because a Third Amended Complaint was filed by Dr. Schottenstein in the SDNY proceeding. In the Motion, the Capias claim that the Third Amended Complaint “eliminate[s] in its entirety as a matter of law” the factual predicate for petitioner's Application for an Order Pursuant to 28 U.S. § 1782.

II. ANALYSIS

I do not find that Dr. Schottenstein's Third Amended Complaint is sufficient grounds to reconsider my Order granting Orthogen's Petition.

The Deponents raise no new legal argument; they simply claim that Dr. Schottenstein's Third Amended Complaint admits that the total amount of revenue it originally claimed in its first Complaint was an “error,” and the total amount of revenue received by Dr. Schottenstein and the Capias in administering Regenokine was actually closer to around $384,630 as opposed to the $6 million he originally claimed or the $3 million figure Orthogen indicated in its Petition to this Court. It is true, as the Deponents point out, an amended complaint supersedes and replaces the original complaint. See Reynolds v. Behrman Capital IV, L.P., 988 F.3d 1314, 1319 (11th Cir. 2021). But even if Dr. Schottenstein's Third Amended Complaint supersedes the first Complaint, the Third Amended Complaint still provides a sufficient basis for Orthogen to seek discovery under § 1782. Dr. Schottenstein's new complaint does not allege with specificity any dollar figure with respect to the revenue that he and the Capias received under the program. Rather, he cites to a report made by Edward Capla himself reporting the amount of revenue, which appears to have changed drastically since Dr. Schottenstein's original sworn affidavit. He also says that “Edward L. Capla did not provide [Schottenstein] with documentation or computations used to create the reports sent to Orthogen” and “Plaintiffs have no knowledge of the truth or veracity of such reports provided to Defendants.” (DE 56-1 at 23). In contrast to what the Deponents claim in their Motion, the Third Amended Complaint continues to state a factual predicate for Orthogen's contemplated foreign proceedings and its § 1782 Petition to depose the Capias on the veracity of their reported annual revenue.

The Magistrate Judge walked through each § 1782 factor in great detail in his original order and found that each one had been met. (DE 38). He also found that each of the discretionary Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 247–48 (2004), factors weighed in favor of Orthogen in seeking to depose the Capias. Further, section 1782 provides district courts the authority to authorize a “broad range of discovery” when a foreign proceeding is within “reasonable contemplation.” Id. at 259. Neither the Deponents nor the Intervening Party raise sufficient new evidence in their numerous briefs that would undermine my prior conclusion. Orthogen has met the statutory requirements to depose the Capias under § 1782, and a foreign proceeding remains in “reasonable contemplation.” I continue to hold to my finding that none of the discretionary Intel factors favor the Capias. Compare In re Clerici, 481 F.3d 1324, 1334 (11th Cir. 2007) (upholding the district court's denial of a motion to reconsider it's decision authorizing § 1782 discovery because “all four statutory requirements [had been] met” and “none of the [Intel] factors favor[ed] [the moving party]”).

*3 Accordingly, it is ORDERED AND ADJUDGED that:

SIGNED in Chambers at West Palm Beach, Florida, this 18 day of January, 2024.