Case Update (2020): In re Akhmedova; 28 USC 1782 and gathering evidence in the U.S. in support of a foreign divorce proceeding

Tatiana Akhmedova filed an ex parte request of the U.S. District Court for the Western District of Texas, using 28 USC 1782 to seek certain evidence in support of her English divorce action.  Tatiana alleges that the English courts have ordered certain money judgments and transfers of property in her divorce action against her Husband, Farkhad Akhmedova.  She also alleges that Farkhad has failed to abide by the orders and, in fact, has transferred certain assets that the English court awarded to her, including a yacht, the M/Y Luna. In her attempts to collect on the judgments, the English court ordered Farkhad's son Temur, to produce certain electronic information and cooperate in a forensic investigation.  Needless to say, at the end of the day, Tatiana claims no one cooperated, and Tatiana is now seeking discovery from Rackspace, the email host for Great Circle, the entity that provided email and IT hosting for the M/Y Luna.  She is also asking that the court permit her to circumvent the Rule 45 notice requirement.

1782 requires Tatiana to demonstrate: (1) she is an interested person, (2) the documents she requests are for use in a foreign proceeding, and (3) the source of the documents is found in the district where she filed.  She was able to prove as much.  Despite meeting this burden, the court still has discretion to reject Tatiana's request, and would look to certain discretionary factors: (1) whether Rackspace is a participant in the foreign proceeding, (2) the nature of the foreign proceeding and whether the English courts are receptive to federal court judicial assistance, (3) whether Tatiana is attempting to circumvent foreign proof-gathering restrictions, and (4) whether her requests are unduly intrusive or burdensome.

For the most part, Tatiana's requests were appropriate, but some were overly broad and unduly intrusive and burdensome. She essentially asked for all documents from any email account for Farkhad and Temur, regardless of the subject matter.  It isn't Rackspace's obligation to search through the subject matter.  Tatiana's requests needs to be narrowly tailored to the English proceedings. Finally, while Tatiana's request to circumvent the notice requirement makes sense, she didn't provide a legal basis for this request. She needed to have addressed the due process concerns inherent with her request. 

Therefore the Magistrate Judge recommended granting Tatiana's application in part, and denying it in part. 

See Ted Folkman's blog for a lot more on 28 USC 1782 actions.