United States District Court, D. Colorado
In re APPLICATION OF EDWARD D. FAGAN, PURSUANT TO 28 U.S.C. § 1782 FOR JUDICIAL ASSISTANCE IN OBTAINING EVIDENCE FROM DROPCATCH.COM 1057 LLC; DOMAIN PROTECTION SERVICES, INC., and HUGEDOMAINS.COM, and THE PERSONS/ENTITIES BEHIND fidelity@draftprocessing.com & lawfirm@randolph.com FOR USE IN A FOREIGN TRIBUNAL AND PROCEEDING, Applicant.
ORDER
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE
This
matter is before the Court on the “Application for
Judicial Assistance Pursuant to 28 U.S.C. § 1782 to Aid
in Foreign Proceeding” (the Application”) (ECF
No. 1), filed ex parte by Edward D. Fagan who
proceeds pro se. At issue is whether Mr. Fagan has
demonstrated the Court should exercise its discretion and
provide the requested discovery assistance sought pursuant to
28 U.S.C. § 1782. Upon review of the Application and the
relevant law, the Court finds Mr. Fagan has not.
I.
BACKGROUND
Mr.
Fagan's Application is based on the following
allegations. A “Nigerian Type Internet & Bank
Fraud” was committed against Mr. Fagan, his partners,
and predecessors. Specifically, Kari Peters (and persons or
entities unknown) used two email addresses and three domains
to defraud Mr. Fagan (and the others) into sending millions
of dollars in wire transfers to acquire an interest in
certain “Inheritance Monies and Assets.” Such
monies and assets, according to Mr. Fagan, did not exist.
The
South African Police Services (“SAPS”) of the
Republic of South Africa is conducting a criminal
investigation against Ms. Peters concerning this fraud. Mr.
Fagan seeks an order from this Court to obtain information in
the custody and control of the three domains for use in the
SAPS investigation.
II.
ANALYSIS
Under
28 U.S.C. § 1782(a), “[t]he 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.” Mr. Fagan proceeds pro se; therefore
the Court reviews his papers more liberally than those
prepared by lawyers. Firstenberg v. City of Santa Fe,
N.M., 696 F.3d 1018, 1024 (10th Cir. 2012). The Court,
however, does not act as the pro se party's
advocate. Id.
The
threshold requirements of § 1782 are met if
“‘(1) the person from whom 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 international tribunal or
any interested person.'” In re Request for
Int'l Judicial Assistance from the Norrköping
District Ct., Sweden , 219 F.Supp.3d 1061, 1062 (D.
Colo. 2015) (quoting Schmitz v. Bernstein Liebhard &
Lifshitz LLP, 376 F.3d 79, 83 (2d Cir. 2004)).
Mr.
Fagan has not shown all the threshold requirements are met
here. The first requirement is met because, according to the
Application, the domain witnesses may be found in Denver. The
third requirement is also shown as Mr. Fagan is one of the
victims of the alleged fraud and the original complaining
witness in the investigation; therefore, he qualifies as an
interested person. The second requirement, however, is not
satisfied. Mr. Fagan represents the discovery sought is for
use in a criminal investigation before the SAPS - that this
investigation is a “foreign proceeding.” The
requirement, however, is that the discovery be for use in a
“foreign tribunal” and Mr. Fagan fails to show
the SAPS is such a “tribunal.” See Intel
Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 258
(2004) (noting “tribunal” includes investigating
magistrates, administrative and arbitral tribunals, and
quasi-judicial agencies as well as conventional courts). Even
assuming, arguendo, Mr. Fagan satisfies the
threshold requirements, the Court's inquiry does not end
here.
The
Court still retains discretion over whether to allow the
requested discovery, even if the statutory threshold
requirements are met. See Intel Corp., 542 U.S. at
247, 264 (Section 1782(a) “authorizes but does not
require” a district court to provide judicial
assistance). The Supreme Court has identified the following
factors which a court should consider in ruling on a §
1782(a) request: (1) whether the party from whom discovery is
sought is a participant in the foreign proceeding and,
therefore, within the jurisdiction of the tribunal; (2) the
nature of the foreign tribunal and the character of the
foreign proceeding; (3) the receptivity of the foreign
tribunal to such judicial assistance; (4) whether the request
is an attempt to circumvent foreign discovery restrictions;
(5) whether the request is an attempt to circumvent other
foreign or United States policies; and (6) whether the
request is unduly intrusive or burdensome. Intel
Corp., 542 U.S. at 264-65; see Republic of Ecuador
v. Bjorkman, 801 F.Supp.2d 1121, 1124 (D. Colo. 2011),
aff'd and adopted, No. 11-CV-01470-WYD-MEH, 2011
WL 5439681 (D. Colo. Nov. 9, 2011) (identifying factors).
Upon review, the Court finds they do not support the
rendering of the judicial assistance requested.
First,
the domains against whom Mr. Fagan seek information are not
participants in the SAPS. Nonetheless, Mr. Fagan states the
SAPS is investigating Ms. Peters who allegedly sent or
received the emails requesting monies to obtain an interest
in the Inheritance Monies and Assets and who controlled one
or more of the domains. As such it appears that Ms. Peters is
within the jurisdiction of the SAPS and Mr. Fagan fails to
show the SAPS is unable to obtain the requested information
from her.
Next,
the nature of the foreign tribunal. Here, the SAPS is not a
tribunal but the police and the proceedings at issue are
police investigations. As such, the Court finds it does not
support or warrant judicial assistance.
Third,
the receptivity of the foreign tribunal to such judicial
assistance. Mr. Fagan has submitted emails indicating the
SAPS would be receptive. But, the Court is not persuaded that
it should rely on unsubstantiated emails and, further, the
police is not a tribunal.
Fourth
and fifth, whether the request is an attempt to circumvent
foreign discovery restrictions or policies. Here, Mr. Fagan
summarily states he is not doing so, implicitly acknowledging
such restrictions and policies exist. However, Mr. Fagan
fails to identify what restrictions or policies exists and
why his request does not circumvent them. In addition,
Intel directs the Court to ...