The U.S. District Court for the Southern District of New York issued an opinion in In Re. Mariani (20 Misc. 152) on April 16, 2020 where it granted Lorenzo Mariani’s petition under 28 U.S.C. 1782 to serve a subpoena duces tecum on Citibank, N.A. to obtain documents to use in his divorce proceeding in Florence, Italy.
For a petitioner to succeed in securing discovery for his or her foreign proceeding, s/he must:
1. make the request in the federal district court where the person resides or is found (Citibank is in New York);
2. the discovery is for use in a foreign proceeding in a foreign tribunal (his divorce was pending in the courts in Florence, Italy); and
3. the request is made by a foreign international tribunal or any interested person (Mr. Mariani is an interested person in his own divorce).
Mr. Mariani met these three requirements under 28 U.S.C. 1782.
Meeting these three requirements leaves the federal district court free to grant the discovery request in its discretion. The U.S. Supreme Court further elaborated on four additional elements “that bear consideration in ruling on” a 1782 request. Specifically, the court should consider:
1. whether Citibank is a participant in the Italian divorce proceeding (it is not);
2. Italy’s receptivity to U.S. federal court judicial assistance (it is receptive);
3. whether Mr. Mariani’s request was made to circumvent Italy’s proof-gathering restrictions (it was not); and
4. whether Mr. Mariani’s request is unduly intrusive or burdensome (it is not – he requested monthly checking account statements for his spouse).
The end result is that the U.S. District Court issued the subpoena duces tecum to Citibank, N.A. for the pertinent bank statements for Mr. Mariani’s divorce.