In re Application of Zarzur
In re Application of Zarzur
2024 WL 4664721 (S.D.N.Y. 2024)
August 22, 2024

Netburn, Sarah,  United States Magistrate Judge

28 U.S.C. § 1782
Third Party Subpoena
Privacy
Failure to Produce
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Summary
The petitioner filed a petition to obtain discovery from three financial institutions for use in two Brazilian proceedings involving alleged fraudulent management of her late father's estate by her siblings. The district court granted the petition, allowing the petitioner to subpoena extensive financial documents and communications. However, the respondents, who had acknowledged the action in the Brazilian proceedings, filed a motion to intervene and stay the discovery. The district court stayed the discovery pending further order.
Additional Decisions
IN RE APPLICATION OF ADELE ZARZUR, Applicant,
Pursuant to 28 U.S.C. § 1782 for Judicial Assistance in Obtaining Evidence for Use in Foreign and International Proceedings Pending in the Federative Republic of Brazil
22-mc-00348 (AT)(SN)
United States District Court, S.D. New York
Filed August 22, 2024

Counsel

Gabriela Barreto Menna Barreto Scanlon, MB Scanlon PLLC, Washington, DC, Robert Zink, Quinn Emanuel Urquhart & Sullivan LLP, Washington, DC, Gavin Frisch, Quinn Emanuel Urquhart & Sullivan LLP, Boston, MA, Lucas Bento, Quinn Emanuel Urquhart & Sullivan, New York, NY, for Applicant.
Netburn, Sarah, United States Magistrate Judge

REPORT & RECOMMENDATION

*1 TO THE HONORABLE ANALISA TORRES:
On December 6, 2022, Petitioner Adele Zarzur filed an ex parte application to obtain discovery from JPMorgan Chase & Co., the Federal Reserve Bank of New York, and The Clearing House Payments Company LLC (the “Respondents”) for use in two Brazilian proceedings pursuant to 28 U.S.C. § 1782 (the “Petition”). Pet. Disc. Mot., ECF No. 1. On January 8, 2024, the district court granted the Petition (the “Authorizing Order”). ECF No. 19. Two months later, Roberto Waldomiro Zarzur and Ricardo Waldomiro Zarzur (the “Zarzur Brothers”), individually and in their capacity as the managers and principals of Petitioner's discovery targets, moved to intervene, vacate the district court's Authorizing Order, quash the subpoenas, and stay discovery.
Judge Torres referred this matter to me for a report and recommendation. I recommend that the Court DENY the Zarzur Brothers’ motion to intervene.
BACKGROUND
I. Factual Background
Petitioner and the Zarzur Brothers are siblings and heirs to the estate of their late father, Waldomiro Zarzur. Pet. Br., ECF No. 2 at 1. Waldomiro Zarzur was a Brazilian businessman and engineer who had been the head of the conglomerate Grupo Waldomiro Zarzur (“WZ Group”). Id. at 5–6. The Zarzur Brothers are the de facto administrators of Mr. Zarzur's estate, which includes the WZ Group. Id. at 1. The Zarzur Brothers have a majority ownership interest in the WZ Group. Lehmann Decl., ECF No. 4 at 7. Petitioner alleges that the Zarzur Brothers had siphoned assets out of the estate and concealed them, thereby depriving Petitioner of her inheritance. Id. Specifically, Petitioner alleges to have discovered accounting irregularities in the Zarzur Brothers’ management of the WZ Group using an independent auditor. Pet. Br. at 11. In light of these events, Petitioner initiated two proceedings in Brazil. The first is a probate inventory proceeding in which Petitioner is seeking to account for the assets of her late father's estate and compel their distribution in accordance with the decedent's wishes. The second is a corporate proceeding in which Petitioner is seeking damages from the Zarzur Brothers for their allegedly fraudulent management of the WZ Group and its subsidiaries. See Pet. Br. at 14–17.
Petitioner subsequently obtained two court orders from the probate court in Brazil. One authorized her to investigate assets outside of Brazil belonging to Waldomiro Zarzur's estate, and the other authorized her to gather information from banking institutions to locate assets outside of Brazil that are in her late father's name. See Lehmann Decl. at 11–12. On May 8, 2024, the probate court in Brazil revoked its earlier orders and issued a new order that limited Petitioner's authorized scope of investigation to “assets within the Brazilian territory in the name of Waldomiro Zarzur.”[1] ECF No. 45-2 at 3.
II. Procedural Background
*2 The Petition was filed on December 6, 2022. It relies on both the probate inventory proceeding and the corporate proceeding in Brazil. See Pet. Br. at 1. Petitioner sought to subpoena the Respondents for extensive financial documents and communications pertaining to Waldomiro Zarzur, the Zarzur Brothers, and the companies they held. See Bento Decl., ECF No. 5. Petitioner also sought to depose JPMorgan Chase & Co. to obtain testimony regarding the assets and financial information of entities connected to the WZ Group (the “Entities”), the assets and accounts of Waldomiro Zarzur, as well as the Zarzur Brothers’ communication and assets insofar as they are related to Waldomiro Zarzur's estate or the Entities. ECF No. 5-3. Petitioner's Brazilian lawyer alleges that these documents will show money flows concerning the Entities, Waldomiro Zarzur, and the Zarzur Brothers, thereby providing evidence that the Zarzur Brothers had siphoned assets from the estate. Lehmann Decl. at 14.
On December 7, 2022, the district court ordered the Respondents to file any opposition to Petitioner's discovery motion by January 20, 2023. ECF No. 6. The Federal Reserve Bank of New York took no position on the Petition and stated that it “will respond to any Court-ordered discovery” in connection with the Petition. ECF No. 17. The other Respondents likewise did not oppose the Petition. Petitioner alleges that on December 12, 2022, the Zarzur Brothers acknowledged the existence of this action and commented on the Petition's content in the Brazilian corporate proceeding. They did not, however, appear in this proceeding. Then, on January 8, 2024, the district court granted the Petition.
Three weeks after the district court issued the Authorizing Order, counsel for the Zarzur Brothers allegedly communicated to Petitioner the possibility of intervening in this action. Pet. Opp. Br. at 9. The Zarzur Brothers filed their motion six weeks after the district court issued the Authoring Order, seeking to intervene, vacate the Authorizing Order, quash subpoenas, and stay discovery. Subsequently, the district court stayed the Authorizing Order pending further order.[2]
DISCUSSION
I. Legal Standard
Section 1782 of Title 28, in relevant part, states the following:
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 ... upon the application of any interested person .... 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.
28 U.S.C. § 1782(a). District courts routinely grant applications made pursuant to § 1782 ex parte, and respondents “can later challenge any discovery request by moving to quash” pursuant to Federal Rule of Civil Procedure 45(d)(3). Gushlak v. Gushlak, 486 F. App'x 215, 217 (2d Cir. 2012). Courts in this district have also allowed non-parties other than respondents to intervene in ex parte § 1782 proceedings and oppose discovery. See, e.g., In re Hornbeam Corp., No. 14-mc-424 (VSB), 2015 WL 13647606, at *9 (S.D.N.Y. Sept. 17, 2015), aff'd, 722 F. App'x 7 (2d Cir. 2018); In re Niedbalski, No. 21-mc-747 (JGK), 2023 WL 4399003, at *3 (S.D.N.Y. July 7, 2023).
*3 The Zarzur Brothers seek to intervene in this ex parte proceeding. “In evaluating whether the requirements for intervention are met, courts ‘accept as true the non-conclusory allegations of the motion ....’ ” In re Hornbeam Corp., 2015 WL 13647606, at *2 (quoting Aristocrat Leisure Ltd. v. Deutsche Bank Tr. Co. Am., 262 F.R.D. 348, 352 (S.D.N.Y. 2009)); accord Floyd v. City of New York, 302 F.R.D. 69, 83 (S.D.N.Y. 2014), aff'd in part and appeal dismissed in part, 770 F.3d 1051 (2d Cir. 2014). Furthermore, courts “must be mindful that each intervention case is highly fact specific and tends to resist comparison to prior cases.” Aristocrat Leisure Ltd., 262 F.R.D. at 352.
II. Intervention
The Zarzur Brothers argue that they are entitled to intervene as a matter of right under Federal Rule of Civil Procedure 24(a) or as a matter of permission under Federal Rule of Civil Procedure 24(b). A court must grant a timely motion to intervene filed by anyone who “claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.” Fed. R. Civ. P. 24(a)(2). A court may also grant, at its discretion, a timely filed motion to intervene by anyone who “has a claim or defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B).
The Court of Appeals for the Second Circuit has set forth four requirements for both kinds of intervention. “To be granted intervention as of right or by permission, ‘an applicant must (1) timely file an application, (2) show an interest in the action, (3) demonstrate that the interest may be impaired by the disposition of the action, and (4) show that the interest is not protected adequately by the parties to the action.’ ” Floyd v. City of New York, 770 F.3d 1051, 1057 (2d Cir. 2014) (quoting “R” Best Produce, Inc. v. Shulman-Rabin Mktg. Corp., 467 F.3d 238, 240 (2d Cir. 2006)). “[F]ailure to satisfy any one of these four requirements is a sufficient ground to deny the application.” Id. (internal quotation marks omitted).
The Zarzur Brothers argue that they have confidential financial interests in the information that Petitioner is seeking to subpoena. “[P]ermissive intervention is an appropriate means ... to vindicate any confidentiality interests [the intervenor] might have.” In re Hornbeam Corp., 2015 WL 13647606, at *3 (explaining that permissive intervention in a § 1782 proceeding is an appropriate means for the intervenor to protect his confidentiality interests in wire transfer records that may contain personal financial information). Although the Zarzur Brothers might have a valid interest in this action to support intervention, their motion to intervene fails the timeliness test.
A. Timeliness of the Motion to Intervene
Timeliness is the first requirement that any motion to intervene must satisfy. See Floyd, 302 F.R.D. at 84 (“Under both provisions of Rule 24, the threshold inquiry is whether the application for intervention is timely.”). Timeliness is an inquiry that depends on the totality of the circumstances and the district court's sound discretion. See NAACP v. New York, 413 U.S. 345, 366 (1973); D'Amato v. Deutsche Bank, 236 F.3d 78, 84 (2d Cir. 2001) (citing Farmland Dairies v. Comm'r of the N.Y. State Dep't of Agric. and Mkts., 847 F.2d 1038, 1043–44 (2d Cir. 1988)).
*4 In determining timeliness, courts consider four factors: “(a) the length of time the applicant knew or should have known of its interest before making the motion; (b) prejudice to existing parties resulting from the applicant's delay; (c) prejudice to the applicant if the motion is denied; and (d) the presence of unusual circumstances militating for or against a finding of timeliness.” Floyd, 770 F.3d at 1058 (cleaned up) (quoting MasterCard Int'l Inc. v. Visa Int'l Serv. Ass'n, 471 F.3d 377, 390 (2d Cir. 2006). “Among the most important factors in a timeliness decision is ‘the length of time the applicant knew or should have known of his interest before making the motion.’ ” Catanzano by Catanzano v. Wing, 103 F.3d 223, 232 (2d Cir. 1996) (quoting Farmland Dairies, 847 F.2d at 1044)).
i. Length of Time Since the Movants Had Notice of Their Interests
In general, Rule 24 “requires courts to measure timeliness from the moment when the applicant had actual or constructive notice of its unrepresented interest.” Floyd, 302 F.R.D. at 86.
A motion to intervene can be timely even when it is filed several months after the movants had notice of their interests in the action, but courts in this district typically rely on accompanying circumstances to find timeliness when there are long delays. See In re Da Costa Pinto, No. 21-mc-663 (VEC), 2022 U.S. Dist. LEXIS 160606, at *9 (S.D.N.Y. Sept. 6, 2022) (finding a motion to intervene filed five months after the filing of the § 1782 application to be timely in part because the delay was a result of the parties’ attempts to resolve the issues); Republic of the Philippines v. Abaya, 312 F.R.D. 119, 123 (S.D.N.Y. 2015) (citation omitted) (holding that filing a motion to intervene nearly a year after the plaintiff filed its complaint was timely in part because the delay was caused by the intervenors’ efforts to prosecute a similar action in state court).
Courts in this district consistently start the clock for intervention from the moment when the movants know or have reason to know that their interests are threatened, not necessarily when the district court grants the discovery motion. See In re Hornbeam Corp., 2015 WL 13647606, at *3 (holding that the motion to intervene was timely because the intervenor only learned of the ex parte proceedings months after the Petition was granted and moved to intervene shortly thereafter); In Re Request of Susan Devine for Jud. Assistance Pursuant to 28 U.S.C. § 1782 for the Liechtenstein Princely Ct., No. 22-mc-133 (VSB), 2022 WL 1658586, at *3 (S.D.N.Y. May 25, 2022) (holding that the intervenors “timely moved to intervene six days after receiving notification of the ex parte application”).
The Zarzur Brothers do not dispute that they knew about the Petition as early as December 2022—over a year before they moved to intervene and before the Petition was granted. See Pet. Opp. Br. at 15. Nevertheless, they argue that they had no obligation to intervene earlier because their confidentiality interests were affected only after the Petition was granted. The Zarzur Brothers attempt to support this proposition by arguing that courts have allowed intervention after a § 1782 application has been granted. See, e.g., In re Da Costa Pinto, 2022 U.S. Dist. LEXIS 160606, at *9 (permitting intervention where the movants stated their intention to intervene approximately two months after the § 1782 application was granted); In re Reyes, No. 19-cv-7219 (AT), 2019 U.S. Dist. LEXIS 201875, at *3 (S.D.N.Y. Nov. 20, 2019) (permitting intervention where the intervenor moved to intervene the week after the subpoena was granted). The Zarzur Brothers note that the Petitioner fails to cite authorities supporting the proposition that a would-be intervenor's interest can arise before an application is granted. But the Zarzur Brothers also fail to cite any authority supporting the opposite proposition, namely that such an interest can arise only after an application is granted.
*5 According to the plain language of Rule 24, intervention is appropriate if the non-party subpoena would “impair or impede the movant's ability to protect its interest.” Fed. R. Civ. P. 24(a)(2). Thus, the Rule contemplates that the movant's interests exist before the “disposition of the action,” and do not arise only after the Petition is granted. Furthermore, if a would-be-intervenor's interest could not exist before the disposition of the Petition, the “existing parties” to the application would never be able to “adequately represent that interest” in the first place. Id. The Zarzur Brothers’ argument is therefore untenable, and their confidentiality interests must have existed before the granting of Petitioner's application.
The Zarzur Brothers knew that Petitioner was seeking their confidential financial documents at the outset, yet they chose inaction and delay as their litigation strategy. Even after it became clear that none of the Respondents would oppose the Petition, “for whatever tactical reasons, intervenors pursued a wait and see strategy rather than moving timely.” See Underwood v. N.Y. Off. of Ct. Admin., No. 78-cv-4382 (CSH), 1979 WL 271 (S.D.N.Y. July 9, 1979), aff'd, 641 F.2d 60 (2d Cir. 1981). Ultimately, the Zarzur Brothers delayed taking any action for no reason other than that they saw no obligation to intervene.
The Zarzur Brothers’ argument is based on a mistaken understanding of when their confidentiality interests were affected. As a general rule, the movants’ subjective understanding is not a justification for unnecessarily delaying intervention. “Delay is not measured solely subjectively because, if that were the test, a putative intervenor could always claim it did not know it needed to intervene until the eve of its motion.” Floyd, 302 F.R.D. at 89 (internal quotation marks omitted) (quoting Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 182 (2d Cir. 2001)). The movants’ subjective understanding of timeliness, which has no basis in the law, is not an excuse for failing to intervene promptly. Consequently, the Zarzur Brothers’ 13-month delay weighs heavily against a finding of timeliness.
ii. Prejudice to Petitioner
Petitioner argues that allowing intervention would prejudice her rights in the Brazilian proceedings. In exercising their discretion to permit intervention, courts “must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3). Petitioner alleges that she faces a statute of limitations bar in connection with her claims in the Brazilian corporate proceeding, leaving her until only March 2025 to assemble all the evidence she needs. The Zarzur Brothers dispute this allegation, arguing that the statute of limitations is three years instead of two and has been tolled since the filing of the corporate proceeding. See Reply Br., ECF No. 33 at 1–2, 6. The Court need not wade into Brazilian law. Granting the motion to intervene would drag out this proceeding before the district court, which has already taken over a year. Even without any further delay, the process of producing the documents sought by Petitioner could take several months. Petitioner would “face significant prejudice if previously uninterested late-comers are permitted to prolong the legal wrangling and further delay plaintiffs’ hard-won relief.” Floyd, 302 F.R.D. at 98.
iii. Prejudice to the Zarzur Brothers if the Motion Is Denied
Granted, there would also be prejudice to the Zarzur Brothers’ confidentiality interests from denying intervention. The risk of prejudice to parties seeking to intervene in a § 1782 proceeding is significant when their “financial transactions and confidential communications with counsel would be provided to an adversarial party through discovery.” In re Da Costa Pinto, 2022 U.S. Dist. LEXIS 160606, at *9. The discovery requested by Petitioner is broad, encompassing the corporate financial information over the last seven to ten years. See Reply Br. at 6; ECF No. 5-2 at 8–10. Since Petitioner is the only party to this ex parte proceeding and adverse to the Zarzur Brothers’ confidentiality interests, denying intervention would limit the Zarzur Brothers’ ability to protect themselves. Furthermore, the Zarzur Brothers would not be able to rely on any of the Respondents for representation in light of their lack of opposition to the Petition.
*6 The prejudice to the Zarzur Brothers, which is admittedly nontrivial, is nonetheless insufficient to overcome an otherwise untimely motion. A delay is excusable when the intervenors move within the time set by the court to file any motion to vacate or quash subpoenas. See In re Da Costa Pinto, 2022 U.S. Dist. LEXIS 160606, at *9. By contrast, the Zarzur Brothers knowingly waited over a year after the deadline for opposing Petitioner's discovery motion before moving to intervene. Having a stake in the discovery does not entitle the movants to wait indefinitely before intervening. Since the Zarzur Brothers “are not poor, ignorant people whose rights have to be protected,” and they chose inaction for over a year in the face of an unopposed discovery motion, it does not strike the Court “as unjust that intervention on the part of the late-arrivers must yield under all the circumstances herein.” Farmland Dairies, 847 F.2d at 1044–45 (internal quotation marks omitted) (quoting Yonkers Bd. of Educ., 801 F.2d at 595). Moreover, the Zarzur Brothers’ delay substantially undermines there claim of prejudice.
iv. Judicial Inefficiency
The Zarzur Brothers’ wait-and-see approach to ligation further weighs against intervention. Choosing to sit on the sidelines while the litigation progresses and intervening only after the process starts to go poorly for the would-be intervenors contributes to a finding of untimeliness. See MasterCard Int'l Inc. v. Fed'n Inernationale de Football Ass'n, No. 06-cv-3036 (LAP), 2006 WL 3065598, at *2 (S.D.N.Y. Sept. 26, 2006) (holding that VISA's motion to intervene is untimely in part because the movant chose not to intervene until it learned that “things were going poorly” for the party representing the movant's interests), aff'd sub nom. MasterCard Int'l Inc. v. Visa Int'l Serv. Ass'n, 471 F.3d 377 (2d Cir. 2006).
The Zarzur Brothers did nothing to protect their own interests even after the Respondents demonstrated no opposition to Petitioner's application. The deadline for opposing the discovery motion was January 20, 2023. The Zarzur Brothers were aware of the Petition before the deadline but chose not to intervene. The Zarzur Brothers contend that it would have been “precipitous” to intervene before the district court granted the Petition. Reply Br. at 5. In reality, they were waiting for the Court to do the heavy lifting of figuring out whether the Petition should be granted. The Zarzur Brothers do not get to have it both ways—deliberately not asserting their own rights while the Petition was pending and moving to intervene after the district court has come to a decision.
B. Other Requirements for Intervening
Since the Court finds that the Zarzur Brothers’ motion to intervene is untimely, the motion should be denied, and there is no need to decide whether or not the other requirements for intervening as a matter of right or by permission under Floyd are satisfied.
III. Standing to Challenge the Authorizing Order and the Subpoenas
With respect to § 1782 subpoenas, the Court of Appeals has held that “a party against whom the requested information is to be used has standing to challenge the validity of such a subpoena on the ground that it is in excess of the terms of ... [§] 1782.” In re Sarrio, S.A., 119 F.3d 143, 148 (2d Cir. 1997) (quotation omitted). However, it is also true that “[i]n the absence of a claim of privilege a party usually does not have standing to object to a subpoena directed to a non-party witness.” Langford v. Chrysler Motors Corp., 513 F.2d 1121, 1126 (2d Cir. 1975).
The fact that Petitioner intends to use the information sought by the subpoenas against the Zarzur Brothers in Brazil is insufficient for the Zarzur Brothers to have standing to challenge the Petition. Otherwise, any non-party would have standing to object to a subpoena as long as the information sought will be used against the non-party, even if the non-party asserts no privilege in connection with that information. Such a broad reading of Sarrio is inconsistent with the longstanding rule that a third party has no standing to object to subpoenas issued to non-party respondents absent an asserted privilege. See Est. of Ungar v. Palestinian Auth., 400 F. Supp. 2d 541, 554 (S.D.N.Y. 2005) aff'd, 332 F. App'x 643 (2d Cir. 2009) (holding that a non-party standing to move to quash the subpoenas issued to entities with which it holds an attorney-client privilege).
*7 The Zarzur Brothers may be able to assert their personal privacy rights against subpoenas that concern their personal financial records. See Hughes v. Twenty-First Century Fox, Inc., 327 F.R.D. 55, 57 (S.D.N.Y. 2018) (holding that the plaintiff had standing to object to subpoenas issued to non-party witnesses because he had a privacy interest in the discovery sought). They have not, however, asserted any privilege to oppose subpoenas concerning Waldomiro Zarzur and the WZ Group. Thus, the Zarzur Brothers do not appear to have standing to challenge those subpoenas.
Furthermore, assuming arguendo that the Zarzur Brothers have standing to challenge the subpoenas sought by the Petitioner, the Court can still deny intervention. See In re Holocaust Victim Assets Litig., 225 F.3d 191, 196, 198, 202 (2d Cir. 2000) (holding that although the movants had Article III standing to seek intervention, the district judge properly exercised his discretion in denying their motion to intervene because the motion was untimely); see also Tummino v. Hamburg, 260 F.R.D. 27, 37 (E.D.N.Y. 2009) (“Even assuming intervenors had met their burden of establishing standing, their motion must still be denied because it is untimely.”).
Denying intervention precludes the Zarzur Brothers from challenging the Petition. Because I recommend denying intervention, it would be improper to address the merits of the Zarzur Brothers’ challenge to the Petition. If the Court disagrees with this recommendation, I respectfully request that the matter be recommitted to me for consideration of whether to vacate the Authorizing Order and quash the subpoenas.
CONCLUSION
The Court should DENY the Zarzur Brothers’ motion to intervene and DENY any further relief.
* * *
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have 14 days from the service of this Report and Recommendation to file written objections under 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 6(a), 6(d). A party may respond to another party's objections within 14 days after being served with a copy. Fed. R. Civ. P. 72(b)(2); see Fed. R. Civ. P. 6(a), 6(d). These objections shall be filed with the Court and served on any opposing parties. See Fed. R. Civ. P. 72(b)(2). Courtesy copies shall be delivered to the Honorable Analisa Torres if required by that judge's Individual Rules and Practices. Any requests for an extension of time for filing objections must be addressed to Judge Torres. See Fed. R. Civ. P. 6(b). The failure to file timely objections will waive those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. James, 712 F.3d 79, 105 (2d Cir. 2013).

Footnotes

Petitioner has moved for a rehearing with respect to the cancellation of the two prior orders. ECF No. 48-1.
As part of their reply brief, the Zarzur Brothers submitted a declaration of Professor Nadia de Araujo, a Brazilian attorney. See ECF No. 31. Professor Araujo provides legal information regarding the Brazilian probate proceeding and the Brazilian corporate proceeding. The Petitioner moved to strike the declaration on the grounds that it was filed too late – that is, it raises arguments not raised in the initiating motion. See ECF No. 36. Because I recommend denying the motion to intervene, I recommend denying the motion to strike as moot.