IN RE APPLICATION OF STEPHEN SHEFSKY FOR AN ORDER TO TAKE DISCOVERY FOR USE IN FOREIGN PROCEEDINGS UNDER 28 U.S.C. § 1782 Case No. 2:23-cv-00633-JCM-BNW United States District Court, D. Nevada Filed November 01, 2023 Counsel Kiley Harrison, Rory T. Kay, McDonald Carano Wilson LLP, Las Vegas, NV, for Application of Stephen Shefsky for an Order to Take Discovery for Use in Foreign Proceedings Under 28 U.S.C. 1782. Bradley T. Austin, Patrick Gerard Byrne, Snell & Wilmer LLP, Las Vegas, NV, Jonathan Lahn, Pro Hac Vice, Kirkland & Ellis, Chicago, IL, for Intervenor Wynn Resorts Ltd. Weksler, Brenda, United States Magistrate Judge ORDER *1 Before the Court is Petitioner Stephen Shefsky's ex parte application for discovery for use in a foreign proceeding under 28 U.S.C. § 1782. ECF No. 1. Because Petitioner has met the statutory requirements and most of the discretionary factors weigh in his favor, the Court grants Petitioner's application. I. BACKGROUND Petitioner filed this application after he—personally, and through his business, James Bay—loaned David Bunevacz millions of dollars for a purported business venture that was ultimately revealed to be a Ponzi scheme. ECF No. 1 at 3–4. Though Bunevacz pleaded guilty to securities and wire fraud, Petitioner contends that his likelihood of receiving restitution is low because Bunevacz dissipated most of the investors’ funds. Id. at 4. Petitioner now seeks to file a lawsuit against Wynn in Ontario, Canada (where he resides) because he alleges that Wynn should have had suspicions regarding the source of Bunevacz's funds. Id. Shortly after Petitioner filed this application, he served a subpoena on Wynn. ECF No. 2. Wynn moved to intervene in Petitioner's application, or alternatively, to quash the subpoena. ECF Nos. 3 and 4. Because a petitioner's § 1782 application must be granted by a court before the subpoena can be served, the Court granted Wynn's Motion to Quash. ECF No. 20. The Court, however, denied Wynn's Motion to Intervene for failing to cite legal authority that would permit it to do so. Id. Though the Court provided Wynn with additional time to submit supporting legal authority, that deadline has passed. See id. The Court therefore reviews Petitioner's application on an ex parte basis.[1] II. ANALYSIS Courts are authorized to issue orders under § 1782 once the statutory requirements have been satisfied. See, e.g., Schmitz v. Bernstein Liebhard & Lifshitz, LLP, 376 F.3d 79, 83–84 (2d Cir. 2004). Even when those statutory requirements have been satisfied, however, courts are not required to grant the § 1782 petition. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264 (2004). Instead, courts analyze several discretionary factors to determine whether the discovery sought should be allowed. See id. at 264–65. A. Statutory Requirements Under the statutory language of § 1782, the Court is authorized to grant a § 1782 application where a prima facie showing is made that (1) the person from whom discovery is sought resides or is found in this District, (2) the discovery is for use in a proceeding before a foreign or international tribunal, and (3) the application is made by a foreign or international tribunal or any interested person. See In re Application of Ontario Principals’ Council, 2013 WL 6844545, *2 (E.D. Cal. Dec. 23, 2013) (quoting In re Bayer AG, 146 F.3d 188, 193 (3d Cir. 1998)). Each of these statutory requirements is met here. *2 First, Petitioner presented evidence that Wynn is headquartered in this District. ECF No. 1 at 8–9. Second, although the Ontario proceeding has not yet been initiated, the foreign proceeding “need not be currently pending, or even imminent” so long as a “dispositive ruling” by the foreign adjudicative body is “within reasonable contemplation.” Intel, 542 U.S. at 258–59. Petitioner submitted that based upon information revealed in the Bunevacz criminal complaint that Bunevacz lost millions of dollars gambling at Wynn, Petitioner intends to bring claims against Wynn in the Ontario Superior Court of Justice for negligence, knowing receipt of trust funds, and unjust enrichment. ECF No. 1-2 at 7–8. Because Petitioner has provided “some objective indicium that the action is being contemplated,” a dispositive ruling is “within reasonable contemplation” and the second statutory requirement is satisfied. In re Hansainvest Hanseatische Inv.-GmbH, 364 F. Supp. 3d 243, 250 (S.D.N.Y. 2018). Finally, Petitioner will be a litigant in the future civil action in Ontario, ECF No. 1 at 11, and therefore qualifies as an “interested person.” See Intel, 542 U.S. at 256. The Court thus finds that Petitioner satisfied the statutory requirements. B. Discretionary Factors Courts are not required to grant a § 1782 application simply because the statutory requirements are met. See Intel, 542 U.S. at 264. The Court has broad discretion in deciding whether to grant discovery under § 1782. Four Pillars Enterps. Co. v. Avery Dennison Corp., 308 F.3d 1075, 1078 (9th Cir. 2002). The Supreme Court outlined the discretionary factors that district courts should consider when ruling on a § 1782 application: (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 the United States; and (4) whether the subpoena contains unduly intrusive or burdensome requests. See, e.g., In re Premises Located at 840 140th Ave. NE, Bellevue, Wash., 634 F.3d 557, 563 (9th Cir. 2011). These discretionary factors “involve overlapping considerations, are considered collectively by the court in exercising its discretion, and are not stand-alone categorical imperatives.” Macquarie II, 2015 WL 3439103, at *4 (quoting In Matter of Application of Action & Protection Foundation Daniel Bodnar, 2014 WL 2795832, *5 (N.D. Cal. June 19, 2014)). Courts must exercise their discretion under § 1782 in light of the twin aims of the statute: (1) providing efficient means of assistance to participants in international litigation in our federal courts, and (2) encouraging foreign countries by example to provide similar means of assistance to our courts. See, e.g., Pott, 945 F. Supp. 2d at 1199 (quoting Schmitz, 376 F.3d at 84). First, the Court analyzes whether the material sought is within the foreign tribunal's jurisdictional reach. Here, Wynn will be a party to the future foreign proceeding. ECF No. 1-2 at 7–8. Because Wynn—the target of discovery—will be a party, the Ontario Superior Court of Justice presumably will have jurisdiction to order Wynn to produce the requested discovery. Lazaridis v. Int'l Ctr. for Missing & Exploited Child., Inc., 760 F. Supp. 2d 109, 114 (D.D.C. 2011). Thus, this factor weighs against allowing the discovery sought here. But this is just one discretionary factor. Second, the Court analyzes the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign court. Here, Petitioner intends to bring civil claims against Wynn for alleged misconduct in accepting—according to Petitioner—fraudulently acquired funds, and he seeks discovery related to these allegations. ECF No. 1-2 at 7–8. Because there is no indication that the Ontario Superior Court of Justice would be unreceptive to such discovery, the second discretionary factor weighs in Petitioner's favor. In re Adams, No. 21-MC-80011-VKD, 2021 WL 275478, at *4 (N.D. Cal. Jan. 27, 2021) (holding that in the absence of evidence to the contrary regarding the Ontario Superior Court of Justice's receptivity to U.S. judicial assistance, the second discretionary factor weighed in favor of permitting discovery). *3 Third, the Court analyzes whether the pending request is an attempt to circumvent foreign proof-gathering restrictions. Courts have found that this factor weighs in favor of discovery where there is “nothing to suggest” that the petitioner is engaging in such a practice. Medeiros, 2016 WL 1611591, at *3; In re Google, Inc., No. 14-mc-80333-DMR, 2014 WL 7146994, at *3 (N.D. Cal. Dec. 15, 2014). Here, Petitioner submitted that the Ontario Superior Court of Justice has demonstrated receptivity to foreign judicial assistance and cited to an Ontario evidentiary code that permits duly authorized foreign discovery. ECF No. 1 at 13 (citing Evidence Act, R.S.O. 1990 R.S.O. c. E.23, s. 60). Because there currently is no indication in the record that allowing discovery through this proceeding would circumvent Canadian proof-gathering restrictions, the third discretionary factor also weighs in Petitioner's favor. Finally, the Court analyzes whether the subpoena contains unduly intrusive or burdensome requests. The proper scope of discovery arising out of a § 1782 application is generally determined by the Federal Rules of Civil Procedure. See, e.g., Government of Ghana v. ProEnergy Servs., LLC, 677 F.3d 340, 343 (8th Cir. 2012); see also In re Letters Rogatory From Tokyo Dist. Prosecutor's Office, 16 F.3d 1016, 1019 (9th Cir. 1994) (unless the court order otherwise specifies, the Federal Rules of Civil Procedure apply). Here, Petitioner's subpoena sought documents related to transactions and communications between Wynn and the Bunevacs and requested a 30(b)(6) deposition regarding the location, nature, and extent of those documents. ECF No. 1-1 at 6–7, 10–13. This is within the scope of allowable discovery.[2] See FED. R. CIV. P. 26(b)(1). Thus, the final factor weighs in Petitioner's favor. Because Petitioner has met the statutory requirements and most of the discretionary factors weigh in his favor, the Court exercises its broad discretion to grant the application. See Four Pillars Enterps. Co., 308 F.3d at 1078. III. CONCLUSION IT IS THEREFORE ORDERED that Petitioner's application (ECF No. 1) is GRANTED. DATED this 1st day of November 2023. Footnotes [1] Though ex parte requests are typically disfavored, § 1782 applications are frequently reviewed on an ex parte basis because the opposing party may raise objections and exercise its due process rights by challenging the discovery after it is issued. Medeiros v. Int'l Game Tech., No. 2:16-cv-00877-JAD-NJK, 2016 WL 1611591, at *1 (D. Nev. Apr. 22, 2016); In the Matter of a Petitioner for Judicial Assistance Pursuant to 28 U.S.C. Sec. 1782 by Macquarie Bank Ltd., 2014 WL 3439103, at *5 (D. Nev. May 28, 2015) (holding that discovery was not proper under § 1782 in light of arguments presented by Respondent after grant of application and service of subpoena), objections overruled, 2015 WL 7258483 (D. Nev. Nov. 17, 2015). Moreover, Wynn was given the opportunity to intervene and did not do so. [2] It is anticipated that Petitioner will now re-issue the subpoena to Wynn after the approval of this application. Should Wynn oppose the scope of the subpoena, this Court will make the appropriate determinations after considering the parties’ arguments.