United States District Court, D. Colorado
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,
CATHY ARCHER, Respondent.
KRISTEN L. MIX, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Respondent's Motion
to Quash Subpoenas [#7](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.
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]
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.
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.
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
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.
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.
Standard of Review
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 . . . ”).
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
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.”
argues that “[her] knowledge, documents, notes and
sources [ ] are privileged under the First Amendment of the
U.S. Constitution.”Motion [#7] at 3.
Specifically, Respondent asserts that her information is