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In Re Ex Parte Application of James F. Rigby

February 19, 2013

IN RE EX PARTE APPLICATION OF JAMES F. RIGBY, JR., CHAPTER 7
EX PARTE TRUSTEE OF THE ESTATE OF APPLICATION
MICHAEL R. MASTRO APPLICANT.



The opinion of the court was delivered by: Hon. Mitchell D. Dembin U.S. Magistrate Judge

ORDER GRANTING FOR ORDER PURSUANT TO 28 U.S.C. § 1782 [ECF. No. 1]

On February 1, 2013, James R. Rigby, Jr., the Chapter 7 Trustee of the Estate of Michael R. Mastro, ("Applicant" or "Trustee") filed an Ex Parte Application for an Order Pursuant to 28 U.S.C. § 1782 Granting Leave to Obtain Discovery from Michael K. Mastro for Use in Foreign Proceedings. (ECF No. 1). The Applicant seeks permission to subpoena Mr. Mastro for deposition regarding a dispute pending in France.

According to the Application, Michael K. Mastro is the son of Michael R. Mastro. An involuntary bankruptcy petition was filed regarding Michael R. Mastro's business in 2009. In 2011, the Honorable Marc Berreca of the United States Bankruptcy Court for the Western District of Washington found that Michael R. Mastro and his wife had made false and fraudulent representations and fraudulently transferred assets. Judge Barreco ordered the arrest of Michael R. Mastro and his wife in July 2011. They were arrested in France on October 24, 2012. A federal indictment charging them with bankruptcy fraud and money laundering was entered on October 25, 2012.

The Application further reports that in November 2012, the Trustee obtained an order from the district court in Annecy, France, authorizing the bailiff of that court to take possession of and inventory all of the documents and property found at the home of Michael R. Mastro and his wife in France. In December 2012, Michael R. Mastro, his wife, and Michael K. Mastro filed a petition in the French court seeking, among other things, return of certain personal property.

Michael K. Mastro resides in the Southern District of California.

I. LEGAL STANDARD

A district court may grant an application pursuant to 28 U.S.C. § 1782 where: (1) the person from whom the 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 proceeding before a foreign tribunal; and, (3) the application is made by a foreign or internal tribunal or any interested person. See, e.g., Lazaridis v. International Centre for Missing and Exploited Children, 760 F.Supp.2d 109, 112 (D.D.C. 2011).

Even if these requirements are met, a district court retains the discretion to deny the request. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264 (2004); In re Premises Located at 840 140th Avenue., N.E., Bellevue, Wash., 634 F.3d 557, 563 (9th Cir. 2011). The Supreme Court, in Intel, identified several factors that a court should consider in ruling on a request under § 1782:

"(1) whether the material sought is within the foreign tribunal's jurisdictional reach and thus accessible absent Section 1782 aid;

(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 jurisdictional assistance;

(3) whether the Section 1782 request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or theUnited States; and,

(4) whether the subpoena contains unduly intrusive or burdensome requests." 542 U.S. at 264-65.

II. DISCUSSION

A. Authority to Issue ...


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