In re Digiulian
In re Digiulian
Opinion of the Court
*4Petitioners Sasha DiGiulian and John Charles DiGiulian ("Petitioners") seek an order from the Court, pursuant to
BACKGROUND
On December 14, 2017, Petitioners filed an ex parte petition pursuant to
At the time of her death on January 27, 2017, Rita DiGiulian jointly owned a piece of real estate in Quebec, Canada, with Petitioners' mother, Andrea DiGiulian. See Steinberg Decl. ¶ 12. Petitioners indicate that they have possession of two wills purportedly endorsed by Rita DiGiulian as her last will and testament that pertain to this jointly owned property: (1) a March 21, 2013 will providing that Petitioners, as issue of Rita DiGiulian's predeceased son and Petitioners' father, would each receive 50 percent of Rita DiGiulian's joint ownership interest in the property; and (2) an April 29, 2015 will, altering the 2013 will and divesting Petitioners of all interest in Rita DiGiulian's joint ownership interest in the property.
Petitioners state that from 2013 to 2017, Dr. Cullen served as Rita DiGiulian's primary care physician. Steinberg Decl. ¶ 18.
*5Prior to the June 5 video deposition, Dr. Cullen allegedly described Rita DiGiulian's health as fragile. See Mem. in Supp. at 2. Petitioners assert that for these reasons, Dr. Cullen's records and testimony regarding Rita DiGiulian are relevant and necessary for their Canadian proceeding. Pet. at 1-2; Steinberg Decl. ¶ 23. Specifically, in addition to deposition testimony, Petitioners seek the following documents from Dr. Cullen:
1. Rita DiGiulian's medical records from January 1, 2013 through June 30, 2015, including, but not limited to all notes, charts, test results or other writings;
2. All letters, correspondence, emails, and other documents between Dr. Cullen's and/or his office and third persons in which Dr. Cullen references Rita DiGiulian's medical/mental state, from January 1, 2013 through June 30, 2015;
3. All records, letters, correspondence, emails, and other documents received by Dr. Cullen and/or his office related to Rita DiGiulian's treatment, and/or upon which Dr. Cullen or his office relied, related to Rita DiGiulian's medical treatment, from January 1, 2013 through June 30, 2015;
4. All prescriptions written by Dr. Cullen for Rita DiGiulian from January 1, 2013 through June 30, 2015;
5. All medical referrals by Dr. Cullen for Rita DiGiulian from January 1, 2013 through June 30, 2015; and
6. All other documents and/or things in Dr. Cullen's possession, custody or control, that are relevant to Rita DiGiulian's mental and/or medical state between January 1, 2013 and June 30, 2015.
Mem. in Supp. at 3.
On December 28, 2017, the Court entered an Order to Show Cause directing Petitioners to serve the Order and the Petition upon Dr. Cullen, and directing Dr. Cullen to file a response by January 22, 2018 if he intended to oppose the Petition. See Order to Show Cause, ECF No. 2. Petitioners timely served the Order and Petition on Dr. Cullen by facsimile and by hand delivery to his office in Bethesda, Maryland. See Mot. for Entry Order ¶¶ 4-5 & Exs. A-C. Dr. Cullen has filed no opposition, and Petitioners represent that Dr. Cullen has voluntarily provided some of the requested medical records. Mot. for Hr'g II ¶ 4. In accordance with a request from the Court, Petitioners also filed a supplemental memorandum regarding the rationale for their identification of January 1, 2013 to June 30, 2015 as the relevant time frame for the documents sought. See 2/28/2018 Minute Order; Suppl. Mem.
LEGAL STANDARD
The court "is not required to grant a § 1782(a) discovery application simply because it has the authority to do so."
*6Intel Corp. v. Advanced Micro Devices, Inc. ,
DISCUSSION
I. The Court's Authority to Grant the Request
The Court's authority to grant a request for discovery under Section 1782 turns on the following three criteria: "(1) the person from whom discovery is sought must reside in or be found within the district; (2) the discovery must be for use in a proceeding before a foreign or international tribunal; and (3) the application must be made by a foreign or international tribunal or any interested person." In re Leret ,
First, the record indicates that Dr. Cullen, from whom the Petitioners seek documents and testimony, resides or may be found in the District of Columbia. Public real estate records from the District of Columbia list Dr. Cullen's residence as an address in Northwest Washington, D.C. See Steinberg Decl. ¶ 19; see also Mem. in Supp. at 5. Dr. Cullen neither opposed the Petition nor disputed Petitioners' representations regarding his residence. Thus, although Dr. Cullen maintains an office in Bethesda, Maryland, his status as a D.C. resident brings him within the Court's authority under Section 1782. Cf. In re Leret ,
Second, the record clearly indicates that Petitioners intend to use the requested discovery in a foreign tribunal. Petitioners seek records and testimony from Dr. Cullen in connection with a Quebec Superior Court action challenging the validity of Rita DiGiulian's 2015 Canadian will. See Mem. in Supp. at 5; Steinberg Decl. ¶ 14. Section 1782 does not require proceedings to be "pending" or "imminent," and permits courts to authorize discovery provided that the foreign proceedings are "within reasonable contemplation" when the request for judicial assistance is filed. Intel ,
Third, and finally, Petitioners are "interested persons" in the Quebec Superior Court action. See Mem. in Supp. at 6. Petitioners initiated that action to contest the validity of their paternal grandmother's April 2015 will and may benefit if that will is declared invalid. See
II. The Court's Exercise of its Discretion
Having concluded that the Court has the authority to grant Petitioners' request, the Court next must decide whether to exercise its discretion to do so. The Supreme Court has outlined four factors which may "bear consideration" as part of this analysis: (1) whether "the person from whom discovery is sought is a participant in the foreign proceeding ... [if so] the need for § 1782(a) aid generally is not as apparent as it ordinarily is when evidence is sought from a nonparticipant in the matter arising abroad"; (2) "the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the ... court ... abroad to U.S. federal-court judicial assistance"; (3) "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"; and (4) whether the request is "unduly intrusive or burdensome." Intel ,
A. Dr. Cullen's Involvement in the Canadian Proceeding
Section 1782 provides a means of procuring evidence from individuals who are not participants in foreign proceedings and thus "may be outside the foreign tribunal's jurisdictional reach." Intel ,
B. Nature of the Foreign Tribunal, Character of the Proceedings, and Receptivity of the Court
The Court next evaluates whether the nature of the foreign tribunal, the character of the proceedings, and the receptivity of the court to U.S. judicial assistance weigh in favor of granting Petitioners' request. See Intel ,
"To determine whether the character of the foreign proceeding favors permitting discovery, courts analyze how far along the foreign suit is in the discovery process." HT S.R.L. ,
Finally, when assessing the receptiveness of the foreign court to U.S. judicial assistance, it is not necessary to conduct an "extensive examination of foreign law regarding the existence and extent of discover in the forum country." In re Caratube ,
C. Whether the Request is an Attempt to Circumvent Foreign Proof-Gathering Restrictions or Other Policies
The third Intel factor considers whether Petitioners' request is an attempt to circumvent foreign proof-gathering restrictions or other policies. See Intel ,
D. Whether the Request is Unduly Intrusive or Burdensome
The fourth Intel factor evaluates the scope of the requested discovery, asking whether it is "unduly intrusive or burdensome." Intel ,
Petitioners seek to subpoena Dr. Cullen for a deposition and the production of medical records reflecting Dr. Cullen's treatment of Rita DiGiulian between January 1, 2013 and June 30, 2015. See Mem. in Supp. at 3. Petitioners have explained that the medical records from this time period are relevant to establishing Rita DiGiulian's medical and mental state at three significant moments: (1) when she testified at a deposition on June 5, 2015 deposition; (2) when she executed a will on April 29, 2015 will; and (3) when she executed a will on March 21, 2013. See Suppl. Mem. ¶¶ 5-7. Petitioners further assert that they wish to depose Dr. Cullen so that he can provide testimony regarding his "records, observations, and/or opinions." Id. ¶ 9. Petitioners and their counsel intend to use Dr. Cullen's records and testimony "to investigate and prepare the Petitioners' action; to provide grounds for expert witness review and potential expert opinions; and ... as substantive evidence in the action." Steinberg Decl. ¶ 20 & ¶ 23 (noting relevance of "medical testimony and/or medical records of the testator's treating physician ... to the testator's mental capacity").
The discovery Petitioners seek is clearly relevant to the issues in dispute in the Quebec Superior Court proceeding and is narrowly tailored to provide facts Petitioners need to contest the will. The fact that Dr. Cullen has voluntarily provided some of the information Petitioners seek, and has not objected to the Petition, indicates that the request is not unduly burdensome. Therefore, this factor weighs in favor of granting the Petition. In sum, the Intel factors all counsel in favor of granting the Petition, and the Court will exercise its discretion to do so.
CONCLUSION
For the foregoing reasons, the Court hereby GRANTS Petitioners' Ex Parte Petition for Order to Produce Documents and Testimony for use in a Foreign Proceeding, ECF No. 1; DENIES as moot Petitioners' Motion for Entry of Order Authorizing Subpoenas, ECF No. 3; and DENIES as moot Petitioners' Motion for Hearing Regarding Entry of Order Authorizing Subpoenas and Deposition, ECF No. 6. A separate Order will accompany this Memorandum Opinion.
Pet., ECF No. 1; Mot. for Entry Order; Mot. for Hr'g II; Mot. for Hr'g Regarding Entry Order Authorizing Subpoenas and Dep. ("Mot. for Hr'g I"), ECF No. 4; Suppl. Mem. in Supp. Request Authorization Issue Subpoenas for Records and Dep. ("Suppl. Mem."), ECF No. 5.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.