*1 THIS CAUSE is before this Court on Defendant's Motion to Quash Subpoena and Motion for a Protective Order or Alternatively to Stay. ECF Nos. 21, 22. The Honorable William P. Dimitrouleas, United States District Judge, referred this Matter to the undersigned United States Magistrate Judge for an appropriate disposition. ECF No. 9; see also 28 U.S.C.A. § 636(b); S.D. Fla. L.R., Mag. R. 1. Upon thorough review of the Motions, the entire case file, the applicable law, oral argument from counsel at a hearing, and being otherwise fully advised in the premises, the undersigned recommends GRANTING the Motions.

In the underlying petition, Pinewood Technologies Asia Pacific Limited (“Petitioner”) sought judicial assistance, under Title 28 U.S.C. § 1782, to obtain testimony and documents from William Berman, the CEO of Pendragon PLC, in his individual capacity. Petitioner intended to use that information to bolster a fraud claim it plans to file in an ongoing legal proceeding against the similarly named Pinewood Technologies PLC (“Pinewood Technologies”), a company in the United Kingdom. ECF No. 4.

I. BACKGROUND

Petitioner was a reseller of automotive dealer management systems (“DMS”) produced by Pinewood Technologies. ECF Nos. 4, 5. Petitioner entered into two licensing agreements with Pinewood Technologies, giving it exclusive license to resell that software in certain territories in the Asia Pacific region in exchange for monthly fees for each customer. Id. Under that agreement, Pinewood Technologies was prohibited from directly contacting customers in those territories. ECF No. 4 at 2 (citing ECF No. 5). If Pinewood Technologies wanted customer information, it would have to buy out Petitioner with three years notice at four times the amount generated in the last year. Id. Difficulty with Pinewood Technologies’ DMS began to arise, and Pinewood Technologies failed to create or implement individualized programs for specific customers as promised. Petitioner gave Pinewood Technologies time to develop the software, and Pinewood Technologies did not demand payment from Petitioner. Id. at 4.

Petitioner alleges that after the 2019 retirement of Pinewood Technologies’ CEO, Pinewood Technologies began asking an increased number of questions regarding market viability and potential in Petitioner's territories in the Asia Pacific region. Id. at 5. Petitioner also submitted information related to a sales pipeline directly to the board of Pendragon, PLC, Pinewood Technologies’ parent company, following the appointment of William Berman as Pendragon's CEO. Id. Petitioner believed Pinewood Technologies intended to further invest in the region and, upon request, created a growth plan for the market territory. Id.

However, a few months into 2020, Pinewood Technologies made clear there would be no further investment. Id. at 6. Still, Petitioner collected and produced client proposals and international user growth forecasts. Id. At the same time, it became clear to Petitioner that the program developed by Pinewood Technologies—and which Petitioner had exclusive rights to sell—was not working properly and would not be fixed or further developed for the customers to which Petitioner had already sold the product. Id. at 6–7. After Petitioner refused to make payments, Pinewood Technologies terminated the first reseller agreement, and Petitioner terminated the second. Id. at 7.

*2 Petitioner sued for breach of contract. Id. Pinewood Technologies claimed the agreement did not require them to adjust the DMS for individual customers. Id. Notably, Pinewood Technologies nonetheless reached out to the customers in Petitioner's market territories and made the individualized changes that it had not made under the reseller agreements. Id. Petitioner's suit was ultimately unsuccessful, resulting in the High Court of Justice of England and Wales granting summary judgment against Petitioner on the breach of contract claim and granting Pinewood Technologies’ counterclaim. ECF No. 5 at 14, 18, 21. This judgment requires Petitioner to pay $980,000, the payment for which Petitioner is currently in default.

Petitioner now hopes to pursue a claim of fraudulent misrepresentation against Pinewood Technologies but needs evidentiary support to move forward with such a claim under English law. ECF No. 4 at 8. Based on the recent investment into Pinewood Technologies by a third company, Petitioner is confident Berman has the evidence of fraud for which Petitioner is searching. Id. Petitioner believes that because Berman controlled Pendragon as CEO and, as the parent company, thereby controlled Pinewood Technologies’ actions, he must “undoubtedly [be] in possession of documents relating to the design and execution of his strategy for PWUK and the DMS system, how it was valued, what its liabilities were, and what his plan was for the resellers.” Id. at 9.

The High Court rejected Petitioner's request for discovery to substantiate the fraud claim, finding the “case as to the Fraud Argument [to be] currently no more than mere speculation.” ECF No. 5 at 60. The High Court further stated Petitioner's proposed discovery “to determine whether there is a case to be run amounts, to my mind, to no more than a fishing expedition.” Id. at 61. Petitioner seeks assistance from this Court to require Berman to produce documents and testimony against Pinewood Technologies. This Court granted a petition to subpoena Berman based on the affidavits and attachments provided in the ex parte petition. ECF No. 13. Berman now moves to quash the subpoena and requests a protective order or stay. ECF No. 21, 22. Berman relies heavily on the High Court's characterization of Petitioner's requests for discovery. He also points out that none of the information requested relates to Pendragon or its business practices and instead solely requests documents related to Pinewood Technologies.

II. ANALYSIS

Motions to Quash are governed by Federal Rule of Civil Procedure 45(d)(3)(A), which permits courts to grant a motion to quash a subpoena if it “subjects a person to undue burden” or implicates “the disclosure of privileged or protected matter, if no exception or waiver applies.” This rule applies to § 1782 subpoenas. See In re Orthogen Int'l GMBH, No. 23-80743-CIV-MIDDLEBROOKS, 2023 WL 8418969, at *1 (S.D. Fla. Nov. 28, 2023).

Title 28 U.S.C. § 1782(a) “authorizes, but does not require, a federal district court to provide judicial assistance to ... interested persons in proceedings abroad.” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 247 (2004) (internal quotation marks and alterations omitted). This section provides, in pertinent part, as follows:

28 U.S.C. § 1782(a). While this authorizes district courts to provide assistance to foreign courts and litigants, it does not require courts to do so. Intel, 542 U.S. at 247. Instead, that decision is entrusted to the Court's discretion. In re Hubbard, 803 F.3d 1298, 1307 (11th Cir. 2015).

*3 Before ordering production of documents pursuant to a § 1782 request, a court must first verify that four factors are satisfied: “(1) the request must be made ‘by a foreign or international tribunal,’ or by ‘any interested person’; (2) the request must seek evidence, whether it be the ‘testimony or statement’ of a person or the production of ‘a document or other thing’; (3) the evidence must be ‘for use in a proceeding in a foreign or international tribunal’; and (4) the person from whom discovery is sought must reside or be found in the district of the district court ruling on the application for assistance.’ ” Sergeeva v. Tripleton Int'l Ltd., 834 F.3d 1194, 1198–99 (11th Cir. 2016) (quoting In re Clerici, 481 F.3d 1324, 1331–32 (11th Cir. 2007)).

A court should contemplate section 1782’s dual aims of “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.” In re Pimenta, 942 F. Supp. 2d 1282, 1288 (S.D. Fla. 2013) (quoting Euromepa, S.A. v. R. Esmerian, Inc., 154 F.3d 24, 28 (2d Cir. 1998)). However, courts should also consider whether the application is “made in bad faith”, “for the purpose of harassment”, or as part of a “fishing expedition.” In re Kivisto, 521 F. App'x 886, 888 (11th Cir. 2013).

Specifically, the Eleventh Circuit has instructed that they expect “the district [court] [to] carefully examine and give thoughtful deliberation to any request for assistance submitted by an ‘interested person’ ” and “deny the request” when it “suspects that the request is a ‘fishing expedition’ or a vehicle for harassment.” Id. at 889 (quoting In re Request for Assistance from Ministry of Legal Affairs of Trinidad and Tobago, 848 F.2d 1151, 1156 (11th Cir. 1988)). In deciding whether to provide assistance under this section, a district court may also “consider whether the § 1782(a) request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States.” Intel, 542 U.S. at 265; see also In re Clerici, 418 F.3d at 1334 (instructing courts to undertake a circumvention analysis and to consider this as a factor in exercising the discretion granted by § 1782).

Once the § 1782 statutory factors are met, a district court must evaluate four discretionary factors established by the Supreme Court in Intel. The Eleventh Circuit adopted the Intel factors and outlined them as follows:

In re Clerici, 481 F.3d at 1334 (quoting Intel, 542 U.S. at 264–65). While the factors are routinely discussed individually, they should not be considered independent of each other; rather, they should be considered collectively by a court when deciding whether to excise its discretion in granting a § 1782 application. In re Application of Action & Proc. Found. Daniel Bodnar, No. C-14-80076-MISC-EMC-LB, 2014 WL 2795832, at *5 (N.D. Cal. June 19, 2014).

*4 Although Intel did not establish the appropriate burdens of proof for the discretionary factors, “it did say in a footnote that the party ‘targeted’ in a § 1782 application ‘would no doubt wield the laboring oars in opposing discovery.’ ” Dep't of Caldas v. Diageo PLC, 925 F.3d 1218, 1222 (11th Cir. 2019) (citing Intel, 542 U.S. at 265 n.17). In Dep't of Caldas, the Eleventh Circuit evaluated the second discretionary factor, regarding a foreign tribunal's receptivity to the § 1782 information. Id. at 1222–23. The court held that it is “not necessary (or helpful) to put the burden on one side or the other.” Id. at 1223. Instead, the discretionary factors are more akin to “guideposts.” Id.

The first Intel factor examines “whether ‘the person from whom discovery is sought is a participant in a foreign proceeding.’ ” In re Clerici, 481 F.3d at 1334 (quoting Intel, 542 U.S. at 264). “[T]he Supreme Court explained that 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.” In re Jagodzinski, No. 18-20606-MC-WILLIAMS/TORRES, 2019 WL 1112389, at *5 (S.D. Fla. Jan. 15, 2019) (citing Intel, 542 U.S. at 264), report and recommendation adopted, 2019 WL 2255564 (S.D. Fla. Apr. 8, 2019). Indeed, according to the Supreme Court, “nonparticipants in the foreign proceeding may be outside the foreign tribunal's reach ... [and] evidence, available in the United States, may be unobtainable absent § 1782(a) aid.” Intel, 542 U.S. at 264.

The second Intel factor examines whether the foreign tribunal is willing to consider the information sought. In re Jagodzinski, 2019 WL 1112389, at *6. In examining the second Intel factor, the court looks at whether authoritative proof exists that a foreign court would reject evidence obtained with the aid of § 1782. In re MTS Bank, No. 17-21545-MC-WILLIAMS/TORRES, 2017 WL 3155362, at *6 (S.D. Fla. July 25, 2017). Moreover, there is a difference between a foreign court's receptivity or nonreceptivity to the information requested and the “foreign discovery requirement.” In re H.M.B. Ltd., No. 17-21459-CIV-COOKE/GOODMAN, 2018 WL 4778459, at *5, *9 (S.D. Fla. July 2, 2018), report and recommendation adopted, 2018 WL 4776382 (S.D. Fla. Aug. 24, 2018). Ultimately, the party requesting discovery does not have to meet a threshold requirement that evidence sought would be discoverable under the law governing the foreign proceeding. In re Application of Mesa Power Grp., LLC, 878 F. Supp. 2d 1296, 1304 n.3 (S.D. Fla. July 13, 2012).

The third Intel factor examines whether the Applicant's § 1782(a) request “attempt[s] to circumvent foreign proof-gathering restrictions or policies of a foreign country or the United States.” Intel, 542 U.S. at 265. While the court does not require an applicant to conclusively establish that they have exhausted all discovery attempts abroad, “a perception that an applicant has ‘side-stepped’ less-than favorable discovery rules by resorting immediately to § 1782 can be a factor in [the] court's analysis.” In re: Application of Joint Stock Co. Raiffeinsenbank, No. 16-MC-80203-MEJ, 2016 WL 6474224, at *6 (N.D. Cal. Nov. 2, 2016) (internal quotations omitted). Nevertheless, the Eleventh Circuit has held that “even when requested documents may be available in the foreign jurisdiction, there is no requirement to first seek discovery from the non-US tribunal or exhaust other options before applying to a district court for § 1782 discovery.” In re Application of Bracha Found., 663 F. App'x 755, 765 (11th Cir. 2016). “Put differently, the § 1782 applicant's conduct in the foreign forum is not irrelevant.” In re Application of Gilead Pharmasset LLC, No. CV 14-MC-243 (GMS), 2015 WL 1903957, at *4 (D. Del. Apr. 14, 2015).

*5 The fourth and final Intel factor considers whether the Application contains “unduly intrusive or burdensome requests.” Intel, 542 U.S. at 265. Requests must be narrowly tailored, so that the items sought are limited to issues relevant in the foreign proceeding. See In re Bernal, No. 18-21951-MC-WILLIAMS/TORRES, 2018 WL 6620085, at *26–27 (S.D. Fla. Dec. 18, 2018) (holding that subpoenas with the words “relating to” or “regarding” with no specificity as to the nature of the communication sought can render a discovery request facially overbroad and burdensome). “[U]nduly intrusive or burdensome requests may be rejected or trimmed.” Intel, 542 U.S. at 265.

Because a CEO is implicated here, the undersigned also addresses the so-called “apex doctrine.” Under the apex doctrine, “[c]ourts have generally restricted parties from deposing high-ranking officials because (by virtue of their position) they are vulnerable to numerous, repetitive, harassing, and abusive depositions, and therefore need some measure of protection from the courts.” Sun Capital Partners, Inc. v. Twin City Fire Ins. Co., 310 F.R.D. 523, 527 (S.D. Fla. 2015) (quoting Brown v. Branch Banking and Trust Co., No. 13-81192-CIV-SELTZER, 2014 WL 235455, at *2 (S.D. Fla. Jan. 22, 2014)).

The Federal Rules of Civil Procedure “strongly favor full discovery whenever possible.” Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985) (citation omitted). Rule 26(b) explicitly permits a party to obtain discovery of “any matter, not privileged, that is relevant to the claim or defense of any party.” Relevancy is “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter[s] that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (footnote number and citation omitted).

Nevertheless, “a party seeking to depose a high ranking corporate officer must first establish that the executive: (1) has unique, non-repetitive, firsthand knowledge of the facts at issue; and (2) that other less intrusive means of discovery, such as interrogatories and depositions of other employees, have been exhausted without success.” Hickey v. N. Broward Hosp. Dist., No. 14-60542-CIV-BLOOM/VALLE, 2014 WL 7495780, at *2 (S.D. Fla. Dec. 17, 2014). The party seeking to depose a high-ranking official bears the burden of showing the deposition is necessary. See id.

III. DISCUSSION

There does not appear to be any dispute that Petitioner is an interested person who is seeking evidence from a person found within this District. First, Berman has not been a participant in the foreign proceeding, and as a non-party would be outside the foreign tribunal's jurisdictional reach. Second, there is no suggestion that any discovery obtained from Berman would be rejected by the High Court. Petitioner has, therefore, met the first two Intel factors.

Instead, the issues at hand appear in the third prong of the statutory guideposts—whether the evidence is for use in a proceeding in a foreign tribunal—and the third and fourth Intel factors—whether the petition attempts to circumvent foreign proof-gathering restrictions and whether the petition contains intrusive or burdensome requests. In Intel, the Supreme Court interpreted the application of the statutory guideposts, holding that under § 1782, a proceeding does not need to be pending or imminent, but it must “be within reasonable contemplation” for an applicant to seek discovery under the statute. Intel, 542 U.S. at 259. The “for use” statutory requirement is satisfied when a petitioner can: (1) “inject the requested information into a foreign proceeding” and (2) the discovery is “something that will be employed with some advantage or serve some use in the proceeding.” In re Ferrer, No. 18-20226-CIV-O'SULLIVAN, 2018 WL 3240010, at *5 (S.D. Fla. July 3, 2018), on reconsideration in part, 2018 WL 4575043 (S.D. Fla. Sept. 5, 2018). It is enough that a petitioner “intend[ ] to offer it in good faith and argue for its admission.” Id.

*6 It appears the information Petitioner is requesting would, if available and discoverable, be something that would serve a purpose in a proceeding and could be injected into a foreign proceeding. And Petitioner has adequately indicated it will move forward with a claim based upon this information if it is allowed to discover it. However, “[i]f the judge doubts that a proceeding is forthcoming, or suspects that the [Section 1782] request is a ‘fishing expedition’ ... the district court should deny the request.” Trinidad and Tobago, 848 F.2d at 1156. The possibility of the request being a fishing expedition requires a consideration of the third and fourth Intel factors.

The parties each focus on a different aspect of the third Intel factor. Petitioner contends its request under § 1782 does not “conceal[ ] an attempt to circumvent foreign proof-gathering restrictions,” while Berman focuses on the position already taken by the High Court to suggest Petitioner is attempting to avoid an unfavorable ruling prohibiting the gathering of the requested discovery. But because Petitioner's conduct, and the resulting determination from the High Court, is not irrelevant, it must be considered whether Petitioner is attempting to side-step a judicial decision and move forward with a fishing expedition. See Gilead, 2015 WL 1903957 at *4. The question, then, is whether Petitioner is requesting evidence that has already been denied to it.

Petitioner outlines only vague categories of information it hopes to find in Berman's knowledge or possession. Hoping to find evidence of wrongdoing amongst communications between a parent and subsidiary is nothing more than speculation. And Petitioner provides no further support for its request other than steadfast assertions that there was a broader strategy to trick Petitioner out of its business information and oust Petitioner as a reseller of Pinewood Technologies’ software. The lack of specificity is characteristic of a fishing expedition seeking unspecified information “on the off-chance that it may find some evidence of wrongdoing.” Liles v. Stuart Weitzman, LLC, No. 09-61448-CIV-SELTZER, 2010 WL 1839229, at *5 (S.D. Fla. May 6, 2010) (not permitting discovery of Plaintiff's prior employment records because “[d]efendant has failed to demonstrate that it has any basis for believing wrongful conduct by Plaintiff may be revealed by the records sought”). This factor seems to weigh against the petition.

Under the fourth Intel factor, the requests made by Petitioner begin to feel intrusive and burdensome in the context of the position Berman holds in the companies in question. Petitioner seeks many documents from categories that are broad in scope—without an attempt to narrow the information as to time period, topics, or communications between specific people or groups. Petitioner argues the requests are not intrusive and are easy for Berman to find as documents are stored electronically and he has a staff at his disposal to gather information for him. But that does not mean the requests are not burdensome. And because Berman is the CEO of Pendragon, the weight of this fourth Intel factor is affected by the protections established by the apex witness doctrine.

The majority of the requests would require Berman to locate information about Pinewood Technologies for use in a suit against Pinewood Technologies. Even if such information could be found with Berman, that does not necessarily mean Berman is the best source from which to gather that information. The apex doctrine requires the consideration of whether the person from whom the information is sought has first-hand knowledge of the facts at issue and whether less intrusive means of discovery have been exhausted without success. While Berman might know some of this information firsthand, it should not be supposed that the same information could not be discovered in a less intrusive way—that is, from another source actually within Pinewood Technologies or from sources not as high up as the CEO.

*7 If any such information exists, it is better sought from someone within Pinewood Technologies. The fraud claim Petitioner wishes to bring is against Pinewood Technologies, and it is within that corporation Petition is more likely to find the answers it seeks. Even if Pendragon was controlling Pinewood Technologies with the intention of manipulating Petitioner, nothing in Petitioner's requests suggests that Berman himself is the only one in possession of pertinent information. In his position, Berman falls squarely within the protections found under the apex doctrine. If Pendragon leveraged Pinewood Technologies’ connection with Petitioner to manipulate the gathering of sensitive business information, then such knowledge would not lie solely with the CEO of the company. Petitioner at no point suggests it has attempted to gather this information from anyone else, or that Berman himself is the only person who could provide the sought discovery.

The apex doctrine and the third and fourth Intel factors weigh against allowing the discovery. Additionally, the undersigned finds that the discovery—given the circumstances outlined above—would subject Berman to undue burden, rendering his Motion to Quash appropriate under Federal Rule of Civil Procedure 45(d)(3)(A). The undersigned therefore recommends Defendant's Motions be granted.

IV. RECOMMENDATION

Based on the foregoing, the undersigned recommends that Defendant's Motions to Quash Subpoena and for a Protective Order or Alternatively to Stay, ECF Nos. 21 and 22, be GRANTED.

Within fourteen (14) days after being served with a copy of this Report and Recommendation, any party may serve and file written objections to any of the above findings and recommendations as provided by the Local Rules for this district. 28 U.S.C. § 636(b)(1); S.D. Fla. Mag. R. 4(b). The parties are hereby notified that a failure to timely object waives the right to challenge on appeal the District Court's order based on unobjected-to factual and legal conclusions contained in this Report and Recommendation. 11th Cir. R. 3–1 (2018); see Thomas v. Arn, 474 U.S. 140 (1985).

DONE AND SUBMITTED at Fort Lauderdale, Florida this 19th day of November 2024.