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In re Application of Louis Bacon

United States District Court, D. Colorado

September 17, 2018

IN RE APPLICATION OF LOUIS BACON FOR AN ORDER PURSUANT TO 28 U.S.C. § 1782 TO CONDUCT DISCOVERY FOR USE IN FOREIGN PROCEEDINGS Petitioner,
v.
CATHY ARCHER, Respondent.

          ORDER

          KRISTEN L. MIX, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Respondent's Motion to Quash Subpoenas [#7][1](the “Motion”). Petitioner timely filed a Response [#13] in opposition to the Motion [#7], and Respondent filed a Reply [#14]. The Court has reviewed the Motion [#7], the Response [#13], the Reply [#14], the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#7] is GRANTED in part and DENIED in part.

         I. Background

         Petitioner Louis Bacon (“Petitioner”) commenced this action on November 11, 2017, pursuant to 28 U.S.C. § 1782. See Ex Parte Application [#1]. The ex parte application was submitted to assist the Petitioner in connection with two defamation lawsuits (the “Bahamian Actions”) he filed in the Bahamas against a Bahamian publisher named Wendall Jones (“Mr. Jones”) and the media outlets owned and operated by Mr. Jones. Id. at 1-2. Mr. Jones is the publisher of the Bahama Journal, and according to Petitioner, is a proxy of Peter Nygård (“Mr. Nygård”). Id. at 3-4. Mr. Nygård is the alleged orchestrator of a smear campaign against Petitioner, and conducts the campaign through proxies in an effort to hide his own involvement. Id. Petitioner's counsel alleges the proxies of the campaign include Mr. Jones and Mr. Nygård's lawyer, Keod Smith (“Mr. Smith”). Decl. of Janet Bostwick-Dean [#1-3] at 1.

         In a related matter in the Southern District of New York, Petitioner filed a similar § 1782 request on behalf of the Save the Bays campaign. [#1-9] at 2-3. The Save the Bays campaign is an environmental coalition in the Bahamas dedicated to preserving marine environments. Id. The Save the Bays campaign has filed two lawsuits in the Bahamas concerning Mr. Nygård's attempts to develop his property, Nygård Cay. Id. Petitioner is a founder of the Save the Bays campaign. Id.

         The facts underlying the Petition are generally as follows. On July 21, 2010, Mr. Nygård received a letter (“July 21 letter”) from the Prime Minister of the Bahamas which advised him to restore the coastline of Nygård Cay to its original state. Id. at 23-24. Petitioner's counsel alleges Mr. Nygård did not comply with the Government's request, and instead continued his development of Nygård Cay through dredge work. Id. at 24. Petitioner believes that the Government's letter caused Mr. Nygård to consider Petitioner the “root cause” of Mr. Nygård's problems with the Bahamian government. Id.

         Petitioner and Mr. Nygård own neighboring properties in the Bahamas. Id. at 5. One day after the July 21 letter, Mr. Nygård filed a civil action in the Supreme Court of the Bahamas, alleging that Petitioner prevented Mr. Nygård from enjoying an easement over the roadway on Petitioner's property. Id. at 24-25. Five days after the July 21 letter, Petitioner alleges eleven armed police officers conducted a raid on Petitioner's home in the Bahamas. Id. at 25. Following the raid, local and international press published a number of articles about the incident. Id. at 26. Petitioner alleges that this sequence of events marked the beginning of Mr. Nygård's smear campaign and states that a Police Commissioner in the Bahamas personally apologized to Petitioner for the incident and indicated that Mr. Nygård was responsible for the raid. Id. Approximately six weeks after the raid, the Daily Mail published a defamatory article about Petitioner, which was later retracted by the newspaper. Id. at 26-27.

         Petitioner maintains that Mr. Nygård's alleged smear campaign continues through columns published by Respondent Cathy Archer (“Respondent”) in the Bahamas Journal. Ex Parte Application [#1] at 5. Respondent is a citizen of the Bahamas and writes a biweekly column for the Bahamas Journal under the byline P.J. Malone. Decl. of Respondent [#7-1] at 2. Petitioner considers some of Respondent's columns defamatory. Ex Parte Application [#1] at 5.

         In this matter, Petitioner previously asked the Court to issue two subpoenas for the taking of a deposition and production of documents from Respondent. See Id. at 12. The Court granted Petitioner's request. See Order [#6]. Respondent now seeks to quash Petitioner's subpoenas by invoking the federal common law newsperson's privilege. Motion [#7].

         II. Standard of Review

         Any discovery permitted under 28 U.S.C. § 1782 is subject to the Federal Rules of Civil Procedure. Chevron Corp. v. Snaider, 78 F.Supp.3d 1327, 1335 (D. Colo. 2015) (citing Texas Keystone, Inc. v. Prime Nat. Res., Inc., 694 F.3d 548, 554 (5th Cir. 2012)). Fed.R.Civ.P. 45 governs depositions of non-parties by subpoena. “The scope of permissible discovery under Rule 45 is set forth in Fed.R.Civ.P. 26(b)(1), which provides, in part, that [p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.” King v. Solvay S.A., No. 14-mc-00196-LTB-KLM, 2014 WL 4267457, at *2 (D. Colo. Aug. 28, 2014) (quotations omitted). The objecting party has the burden of showing that the discovery requested is objectionable. Masters v. Gilmore, No. 08-cv-02278-LTB-KLM, 2009 WL 4016003, at *2 (D. Colo. Nov. 17, 2009) (citing Klesch & Co. Ltd. v. Liberty Media Corp., 217 F.R.D. 517, 524 (D. Colo. 2003)). A motion to quash is further governed by Rule 45(d)(3), which directs a court to quash a subpoena that “subjects a person to undue burden.” See e.g., Gen. Steel Domestic Sales, LLC v. Chumley, No. 13-cv-769-MSK-KMT, 2014 WL 3057496, at *1 (D. Colo. July 7, 2014) (granting motion to quash when information sought is “overbroad, irrelevant, unnecessary, and was a fishing expedition designed to gain information . . . ”).

         Fed. R. Civ. P. 26(b)(2)© provides that a Court “must limit the frequency or extent of discovery otherwise allowed . . . if it determines that”:

(I) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues

         Additionally, Fed.R.Civ.P. 26© provides that a court may for “good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”

         III. Analysis

         A. Newsperson's Privilege

         Respondent argues that “[her] knowledge, documents, notes and sources [ ] are privileged under the First Amendment of the U.S. Constitution.”[2]Motion [#7] at 3. Specifically, Respondent asserts that her information is ...


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