In Re Ex Parte Application of Cacdce-22-00004 0039.0

Case 2:22-mc-00004-MCS-E Document 39 Filed 07/12/22 Page 1 of 30 Page ID #:1612
1 KEITH R. HUMMEL (Pro Hac Vice)

CRAVATH, SWAINE & MOORE LLP
2
Worldwide Plaza
3 825 Eighth Avenue
New York, NY 10019
4
Telephone: (212) 474-1000
5 Facsimile: (212) 474-3700
6
JAMES LEE (Bar No. 192301)
7 ENOCH LIANG (Bar No. 212324)
8 JOE TUFFAHA (Bar No. 253723)
LTL ATTORNEYS LLP
9 300 South Grand Avenue, Suite 1400
10 Los Angeles, CA 90071
Telephone: (213) 612-8900
11 Facsimile: (213) 612-3773
12
Attorneys for Applicant
13 NOUVEL, LLC
14
15 UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
16 WESTERN DIVISION
17
18 In re Ex Parte Application of Case No. 2:22-mc-00004-MSC-CFE
NOUVEL, LLC
19 DISCOVERY MATTER
20
RESPONSE TO RESPONDENTS’
21 OBJECTIONS TO THE JUNE 8, 2022
22 REPORT AND RECOMMENDATION
23 Judge: Honorable Mark C. Scarsi

24
25
26
27
28
RESPONSE TO OBJECTIONS TO REPORT AND RECOMMENDATION

1
2 TABLE OF CONTENTS
3
Page
4
TABLE OF AUTHORITIES ....................................................................................... ii
5
I. INTRODUCTION ............................................................................................. 1
6
II. RELEVANT FACTS......................................................................................... 2
7
III. ARGUMENT .................................................................................................... 4
8
A. Discovery For the Luxembourg Action Is Warranted ............................ 5
9
10 1. Factor 1: The Discovery Is Likely Unobtainable in
Luxembourg. ................................................................................. 5
11
2. Factor 2: Luxembourg Courts Will Consider § 1782
12
Evidence...................................................................................... 10
13
3. Factor 3: No Circumvention of Proof-Gathering
14 Restrictions. ................................................................................ 11
15
4. Factor 4: Nouvel’s Requests Are Reasonable. .......................... 12
16
B. Discovery For the French Action Is Warranted .................................... 13
17
1. Factor 1: The Discovery Is Likely Unobtainable in
18
France.......................................................................................... 13
19
2. Factor 2: French Courts Admit § 1782 Evidence. ..................... 17
20
3. Factor 3: No Circumvention of Proof-Gathering
21
Restrictions. ................................................................................ 18
22
4. Factor 4: Nouvel’s Requests Are Reasonable. .......................... 19
23
C. The Court Should Not Grant a Stay ...................................................... 21
24
25 IV. CONCLUSION ............................................................................................... 23
26
27
28

1
2 TABLE OF AUTHORITIES
3 Page(s)
4 Cases
5 Advanced Micro Devices, Inc. v. Intel Corp.,
6 292 F.3d 664 (9th Cir. 2002) .................................................................................. 4
7 Akebia Therapeutics, Inc. v. FibroGen, Inc.,

793 F.3d 1106 (9th Cir. 2015) ................................................................................ 5
8
9 Chavez v. Young Am. Ins. Co.,
No. 06-cv-02419-PSF-BNB, 2007 WL 683973 (D. Colo. Mar. 2, 2007) ............ 23
10
Euromepa, S.A. v. R Esmerian, Inc.,
11 51 F.3d 1095 (2d Cir. 1995) ................................................................................... 9
12
Gold v. Kaplan,
13 No. 2:21-cv-03204-FLA-JDE, 2021 WL 6618643 (C.D. Cal. Dec. 2, 2021) ...... 20
14 Heraeus Kulzer, GmbH v. Biomet, Inc.,
15 633 F.3d 591 (7th Cir. 2011) .......................................................................... 11, 19
16 IJK Palm LLC v. Anholt Servs. USA, Inc.,
17 33 F. 4th 669 (2d Cir. 2022) ................................................................................... 9
18 Illumina Cambridge Ltd. v. Complete Genomics, Inc.,

No. 19-mc-80215, 2020 WL 820327 (N.D. Cal. Feb. 19, 2020) ........................... 5
19
20 In re Accent Delight Int’l Ltd.,
791 F. App’x 247 (2d Cir. 2019) .......................................................................... 17
21
In re Alves Braga,
22 789 F. Supp. 2d 1294 (S.D. Fla. 2011) ................................................................. 19
23
In re Ambercroft Trading Ltd.,
24 No. 18-mc-80074-KAW, 2018 WL 2867744 (N.D. Cal. June 11, 2018) ............ 21
25
In re Bracha Found.,
26 663 F. App’x 755 (11th Cir. 2016) ......................................................................... 9
27 In re Cathode Ray Tube (CRT) Antitrust Litig.,
28 No. 4:07-cv-05944, 2013 WL 183944 (N.D. Cal. Jan. 17, 2013) ........................ 11
ii
1 In re Credit Suisse Virtuoso SICAV-SIF,

No. 21-mc-80308, 2022 WL 1786050 (N.D. Cal. June 1, 2022) ........................... 9
2
3 In re Digitechnic,
No. 2:07-cv-00414, 2007 WL 1367697 (W.D. Wash. May 8, 2007) .................. 11
4
In re Evenstar Master Fund SPC,
5
No. 20-mc-00418, 2021 WL 3829991 (S.D.N.Y. Aug. 27, 2021) ......................... 6
6
In re Gilead Pharmasset LLC,
7 No. 14-mc-243 (GMS), 2015 WL 1903957 (D. Del. Apr. 14, 2015) .................. 12
8
In re Gyptec S.A.,
9 No. 16-cv-20810, 2017 WL 10978838 (S.D. Fla. Nov. 2, 2017)......................... 22
10 In re Harbour Victoria Inv. Holdings Ltd. Section 1782 Petitions,
11 No. 15-mc-127, 2015 WL 4040420 (S.D.N.Y. June 29, 2015) ........................... 21
12 In re Hattori,
13 No. 21-mc-80236, 2021 WL 4804375 (N.D. Cal. Oct. 14, 2021) ....................... 10
14 In re Hedrick House Ltd.,

No. mc-20-00048-RGK (DFM), 2020 WL 8457437 (C.D. Cal. May 29,
15 2020) ..................................................................................................................... 21
16
In re IPC Do Nordeste,
17 No. 12-mc-50624, 2012 WL 4448886 (E.D. Mich. Sept. 25, 2012) .................... 16
18 In re Joint Stock Co. Raiffeinsenbank,
19 No. 16-mc-80203, 2016 WL 6474224 (N.D. Cal. Nov. 2, 2016) .......................... 6
20 In re Kreke Immobilien,
21 No. 13-mc-110, 2013 WL 5966916 (S.D.N.Y. Nov. 3, 2013) ............................. 11
22 In re Lab. Ct. of Braz.,

466 F. Supp. 2d 1020 (N.D. Ill. 2006) .................................................................... 6
23
24 In re LG Elecs. Deutschland GmbH,
No. 12-cv-1197-LAB (MDD), 2012 WL 1836283 (S.D. Cal. May 21,
25 2012) ..................................................................................................................... 16
26 In re Macquarie Bank Ltd.,
27 No. 2:14-cv-0797, 2014 WL 7706908 (D. Nev. June 4, 2014) .............................. 5
28
iii
1 In re Marano,
No. 09-cv-80020-mc-DLJ, 2009 WL 482649 (N.D. Cal. Feb. 25, 2009) ............ 16
2
3 In re Mare Shipping Inc.,
No. 13-mc-238, 2013 WL 5761104 (S.D.N.Y. Oct. 23, 2013) .............................. 6
4
In re Microsoft Corp.,
5
428 F. Supp. 2d 188 (S.D.N.Y. 2006) ............................................................ 18, 19
6
In re Nouvel,
7 No. 22-mc-0004-MCS (C.D. Cal. June 8, 2022) (“R&R”) ........................... passim
8
In re O’Keeffe,
9 646 F. App’x 263 (3d Cir. 2016) ............................................................................ 9
10 In re OOO Promnefstroy,
11 No. M 19-99(RJS), 2009 WL 3335608 (S.D.N.Y. Oct. 15, 2009) ................ 18, 19
12 In re Pioneer Corp. v. Technicolor, Inc.,
13 No. 2:18-cv-04524, 2018 WL 4961911 (C.D. Cal. Sept. 12, 2018) .............. 13, 20
14 In re Qualcomm Inc.,
162 F. Supp. 3d 1029 (N.D. Cal. 2016)................................................................ 13
15
16 In re Qualcomm Inc.,
No. 18-mc-80104-VKD, 2018 WL 3845882 (N.D. Cal. Aug. 13, 2018) ............ 10
17
In re Republic of Ecuador,
18 No. 11-mc-80171 CRB (NC), 2012 WL 13187178 (N.D. Cal. Dec. 19,
19 2012) ..................................................................................................................... 22
20 In re Schlich,
21 893 F.3d 40 (1st Cir. 2018)..................................................................................... 9
22 In re Technik,
No. 2:11-cv-01386, 2011 U.S. Dist. LEXIS 162826 (W.D. Wash. Oct. 6,
23 2011) ....................................................................................................................... 5
24
In re Top Matrix Holdings Ltd.,
25 No. 18-mc-465, 2020 WL 248716 (S.D.N.Y. Jan. 16, 2020) .......................... 9, 11
26 In re Vahabzadeh,
27 No. 20-mc-80116, 2020 WL 7227205 (N.D. Cal. Dec. 8, 2020) ......................... 11
28
iv
1 In re XPO Logistics, Inc.,

No. 15-mc-205, 2017 WL 2226593 (S.D.N.Y. May 22, 2017) ........................... 19
2
3 In re XPO Logistics,
No. 15-mc-205, 2016 WL 3528195 (S.D.N.Y. June 22, 2016) ........................... 19
4
Intel Corp. v. Advanced Micro Devices, Inc.,
5
542 U.S. 241 (2004) ...................................................................................... passim
6
Khrapunov v. Prosyankin,
7 931 F.3d 922 (9th Cir. 2019) .............................................................................. 4, 9
8
Lair v. Bullock,
9 697 F.3d 1200 (9th Cir. 2012) .............................................................................. 21
10 Mees v. Buiter,
11 793 F.3d 291 (2d Cir. 2015) ....................................................................... 9, 11, 13
12 Miller v. White,
13 No. 2:14-cv-7543-GW (KK), 2020 WL 4001624 (C.D. Cal. May 27, 2020)...... 13
14 Nat’l Acad. of Recording Arts & Scis., Inc. v. On Point Events, LP,
256 F.R.D. 678 (C.D. Cal. 2009).......................................................................... 13
15
16 Republic of Kazakhstan v. Lawler,
No. 2:20-cv-00090, 2020 WL 417541 (D. Ariz. Jan. 27, 2020) ............................ 6
17
Smith v. Montoya,
18 No. 2:20-cv-00932-VBF (DFM), 2021 WL 6618858 (C.D. Cal. July 21,
19 2021) ..................................................................................................................... 12
20 Foreign Authorities
21 French Cour de Cassation, No. 77-10.109, Feb. 22, 1978 ........................................ 17
22 Luxembourg Commercial Court, No. 35715, Oct. 19, 2011 ..................................... 10
23
Luxembourg Commercial Court, TALCH02/00466, Mar. 19, 2021 .......................... 8
24
Luxembourg Court of Appeal, No. 39407, Jan. 22, 2014 ....................................... 7, 8
25
26 Luxembourg Court of Appeal, No. 31600, Feb. 10, 2010........................................... 8
27 Luxembourg Tribunal du Travail, No. 1982/20, July 24, 2020 .................................. 7

28 Paris High Court, No. 15/00961, Sept. 29, 2016 ....................................................... 17
v
1 Statutes & Rules

2 28 U.S.C. § 1782 ................................................................................................. passim
3 Fed. R. Civ. P. 26 ....................................................................................................... 13
4 Other Authorities
5 S. Rep. No. 88-1580 (1964) ......................................................................................... 4
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
vi
1 Nouvel respectfully submits this Response to the Objections of Mondo

2 Bongo, William B. Pitt, and Warren Grant (collectively, the “Pitt Parties”) to
3 Magistrate Judge Eick’s June 8, 2022 Report and Recommendation denying the Pitt
4 Parties’ Motion To Vacate and To Quash Subpoenas under 28 U.S.C. § 1782. (ECF
5 No. 37.)
6 I. INTRODUCTION
7 The Pitt Parties start their Objections off by misrepresenting the basis of this
8 § 1782 action. This action actually concerns illegal actions Pitt took against his
9 former wife, Angelina Jolie, after she filed for divorce in 2016. Since that filing,
10 Pitt cut Jolie and her company, Nouvel, out of any meaningful participation in their
11 jointly owned Luxembourg company, Quimicum, and prevented Jolie and Nouvel
12 from reaping the benefits of the highly profitable wine business of Quimicum’s
13 wholly owned subsidiary, the French company Chateau Miraval. Although Pitt’s
14 illegal conduct continued after Jolie sold Nouvel to a subsidiary of the Stoli Group
15 in 2021, Nouvel does not seek discovery here for use in the separate dispute
16 between the parties over that sale. Indeed, Pitt did not even challenge the sale until
17 well after, and apparently in retaliation for, Nouvel’s § 1782 application. Instead, in
18 this action, Nouvel seeks information it requires to defend itself against Pitt’s
19 continuing, baseless legal attacks on it in Luxembourg and to seek legal redress for
20 the Pitt-masterminded attempts to deprive Nouvel of the benefits of its interests in
21 Quimicum and, indirectly, Chateau Miraval.
22 The Report and Recommendation (“R&R”) should be adopted in its entirety
23 because it is well-reasoned and properly applies the statutory requirements of § 1782
24 and the Supreme Court’s framework in Intel Corp. v. Advanced Micro Devices, Inc.,
25 542 U.S. 241 (2004). Magistrate Judge Eick carefully examined the record before
26 him, including the facts and the parties’ submissions on foreign law, and correctly
27 applied the law to the facts. Contrary to the Pitt Parties’ arguments, Magistrate
28 Judge Eick did not “operate[] under a new standard” at odds with Intel (ECF

1 No. 36-1, Obj. at 2); instead, he considered each Intel discretionary factor, as he
2 explicitly stated, R&R at 5–6, and as is clear from the R&R.
3 The Pitt Parties’ real complaint is not with the R&R, but with § 1782 itself,
4 which, as the Magistrate Judge noted, was enacted for the express purpose of
5 permitting discovery in cases just like this one. The Pitt Parties try to turn the pro-
6 discovery aims of § 1782 on their head, and improperly seek to impose a standard so
7 high that few § 1782 requests would ever succeed. The fact is that once the
8 statutory requirements of § 1782 are met, as here, Intel gives the Court considerable
9 discretion to grant discovery—the entire purpose behind § 1782. Because
10 Magistrate Judge properly applied the law, the discovery he authorized Nouvel to
11 take—six months ago—should be permitted to proceed.
12 II. RELEVANT FACTS
13 Not surprisingly, because they mischaracterize the focus of this action, the
14 Pitt Parties ignore virtually all the relevant facts. They are briefly summarized here.
15 The Luxembourg Action
16 When Pitt, through Mondo Bongo, and Jolie, through Nouvel, acquired
17 Quimicum in 2011, they split ownership 60-40. In 2013, Pitt caused Mondo Bongo
18 to transfer 10% of the outstanding shares of Quimicum to Nouvel (the “2013 10%
19 Quimicum Share Transfer”), making the two companies equal 50-50 owners of
20 Quimicum. In 2021, Mondo Bongo suddenly sued Nouvel and Quimicum in
21 Luxembourg seeking to annul the 2013 10% Quimicum Share Transfer on the basis
22 that the transfer lacked “cause”—in civil law, a benefit or goal. (ECF No. 4,
23 Ex. L-5.) Pitt’s objective in filing this suit is clear—to take de jure control over
24 Quimicum to legitimize his usurpation of corporate authority and appropriation of
25 the business of Chateau Miraval. Since the filing of this action, Mondo Bongo has
26 filed another (unsuccessful) suit in Luxembourg seeking relief in support of Pitt’s
27 claim for control of Quimicum (the “Luxembourg Action”). In this action, Nouvel
28 seeks documents concerning the reason for and any benefit derived from the share
2
1 transfer to show that there was “cause” for it. (ECF Nos. 2-1 at 10; 2-2 at 9; 2-3 at
2 9, Request Nos. 1–2.)
3 The Contemplated French Action
4 Control of Quimicum is critical because Quimicum wholly owns Chateau
5 Miraval and its incredibly valuable wine business, including one of the world’s
6 leading rosé wines. Chateau Miraval is very profitable, and its trademarks are likely
7 worth hundreds of millions of dollars. Unable to control Chateau Miraval legally
8 through control of Quimicum, Pitt masterminded a successful plan to freeze out
9 Nouvel (and Jolie) and obtain de facto control, which he enjoys to this day.
10 Pitt imposed a shareholder deadlock at Quimicum to prevent Jolie from
11 accessing information about or supervising Chateau Miraval, and to prevent
12 Quimicum from exercising control over the chateau or its business. He used that
13 vacuum to take full control of Chateau Miraval and it business. Seeking to solidify
14 such control, he attempted to appoint his own agent—respondent William Grant—as
15 a director of Chateau Miraval. Pitt now runs Chateau Miraval as if it were his
16 personal fiefdom, pugnaciously refusing all reasonable efforts to resolve the
17 deadlock at Quimicum; to allow Nouvel or Nouvel’s current owner, Tenute de
18 Mondo, to get even basic information about Chateau Miraval’s business; or to allow
19 them to share in its governance on an equal footing with Pitt and Mondo Bongo.
20 Pitt’s usurpation of the governance of Chateau Miraval has had dire
21 consequences. Dating back to at least 2017, Chateau Miraval’s directors, without
22 proper authorization, have allowed a different French entity, Miraval Provence, to
23 register as its own Chateau Miraval’s trademarks, which are among its most
24 valuable assets, apparently for no compensation. And Pitt and his directors appear
25 to have wasted the Chateau’s assets, spending €43,704,111 on renovations that lack
26 a business function, including €1,106,658 on a swimming pool.
27 To mitigate and remedy this situation, Nouvel plans to file action in France
28 against Chateau Miraval’s directors, Miraval Provence, and certain related entities
3
1 on the basis of harm to shareholders at least under Article 1240 of the French Civil
2 Code and Article L225-251 of the French Commercial Code (the “French Action”).
3 Here, Nouvel seeks documents concerning the assets and supervision of Chateau
4 Miraval and Miraval Provence for use in the French Action. (ECF Nos. 2-1 at
5 10–12; 2-2 at 9–11; 2-3 at 9–11, Request Nos. 3–11.)
6 III. ARGUMENT
7 The “twin aims” of § 1782 are (1) to “provid[e] efficient assistance to
8 participants in international litigation” and (2) to “encourage[e] foreign countries by
9 example to provide similar assistance to [U.S.] courts”. Intel Corp. v. Advanced
10 Micro Devices, Inc., 542 U.S. 241, 252 (2004) (citation omitted). To serve these
11 goals, § 1782 encourages liberal discovery. See S. Rep. No. 88-1580, at 3788
12 (1964); R&R at 5; Advanced Micro Devices, Inc. v. Intel Corp., 292 F.3d 664, 669
13 (9th Cir. 2002), aff’d, 542 U.S. 241 (2004) (“[A]llowance of liberal discovery seems
14 entirely consistent with the twin aims of Section 1782.”). That is why § 1782
15 provides district courts with “substantial discretion to permit” requested discovery.
16 Khrapunov v. Prosyankin, 931 F.3d 922, 926 (9th Cir. 2019) (citing Intel, 542 U.S.
17 at 265–65).
18 The R&R found—and the Pitt Parties do not contest—that the § 1782
19 “statutory requirements are satisfied in the present case”. R&R at 5.
20 Nouvel’s application also satisfies the four discretionary Intel factors:
21 (1) whether “the person from whom discovery is sought is a participant in the
22 foreign proceeding”; (2) the “nature of the foreign tribunal, the character of the
23 proceedings underway abroad, and the receptivity of the foreign government or the
24 court or agency abroad to U.S. federal-court judicial assistance”; (3) whether the
25 discovery request is “an attempt to circumvent foreign proof-gathering restrictions
26 or other policies of a foreign country or the United States”; and (4) whether the
27 request is “unduly intrusive or burdensome”. 542 U.S. at 264–65.
28
4
1 A district court is “not required to address explicitly every [Intel] factor”.

2 Akebia Therapeutics, Inc. v. FibroGen, Inc., 793 F.3d 1106, 1112 (9th Cir. 2015).
3 Nevertheless, Magistrate Judge Eick “considered all of the relevant factors”. R&R
4 at 6; see id. at 8–10 (addressing first Intel factor); id. at 8, 10–11 (addressing second
5 and third Intel factors); id. at 11–12 (addressing fourth Intel factor). Because the
6 R&R properly applied the law to the facts, Nouvel respectfully asks the Court to
7 adopt it in full.
8 A. DISCOVERY FOR THE LUXEMBOURG ACTION IS WARRANTED
9 The R&R properly applied the Intel factors in recommending that the Court
10 reject the motion to vacate with respect to the requests directed to evidence to be
11 used in the Luxembourg Action. The law and the record fully support that decision.
12 1. Factor 1: The Discovery Is Likely Unobtainable in Luxembourg.
13 The first Intel factor considers whether the evidence sought is “outside the
14 foreign tribunal’s jurisdictional reach”. 542 U.S. at 264. The R&R, at 9, found this
15 factor favors Nouvel because “[s]ufficient doubt pervades the issue of the alleged
16 availability of the subject discovery directly from the Luxembourg court”. That
17 analysis is sound because “[w]here the foreign tribunal’s procedural rules may not
18 allow for the discovery sought, this factor militates in favor of granting § 1782
19 relief”. In re Macquarie Bank Ltd., No. 2:14-cv-0797, 2014 WL 7706908, at *3
20 (D. Nev. June 4, 2014) (emphasis added); see also Illumina Cambridge Ltd. v.
21 Complete Genomics, Inc., No. 19-mc-80215, 2020 WL 820327, at *4 (N.D. Cal.
22 Feb. 19, 2020) (“[E]ven if Respondents were participants [in the foreign
23 proceeding], the discovery [applicant] seeks might not be available in any event.
24 This also weighs in favor of § 1782 discovery.”); In re Technik, No. 2:11-cv-01386,
25 2011 U.S. Dist. LEXIS 162826, at *6–7 (W.D. Wash. Oct. 6, 2011) (finding the first
26 Intel factor weighed in applicant’s favor even when target was participant in foreign
27 proceedings given the “jurisdictional limitations of the German court”).
28
5
1 Here, the record amply supports Magistrate Judge Eick’s finding that the first
2 Intel factor favors discovery. Jean-Claude Wiwinius, former President of the
3 Luxembourg Supreme Court, declared that because neither Pitt nor Grant is a party
4 to the Luxembourg Action, nothing in Luxembourg law allows discovery to be
5 taken from them. (ECF No. 31-1, Wiwinius Decl. ¶ 22.) The Pitt Parties do not
6 even attempt to contest this point. Moreover, Pitt’s status as a shareholder and an
7 officer of Mondo Bongo and Grant’s role as Mondo Bongo’s registered agent do not
8 render them “effectively” the same entity as Mondo Bongo. See In re Lab. Ct. of
9 Braz., 466 F. Supp. 2d 1020, 1031 (N.D. Ill. 2006) (finding first Intel factor
10 supported granting application when target was “merely the shareholder” of
11 participant in foreign proceeding); In re Evenstar Master Fund SPC, No. 20-mc-
12 00418, 2021 WL 3829991, at *11 (S.D.N.Y. Aug. 27, 2021) (director and officer
13 were not “one in the same” with § 1782 targets), aff’d, No. 20-MC-418, 2021
14 WL 5498283 (S.D.N.Y. Nov. 23, 2021). Notably, neither Pitt nor Grant has
15 committed to provide the requested discovery in the Luxembourg Action.
16 The cases the Pitt Parties cite to try to excuse Pitt and Grant from discovery
17 are inapposite. The Raiffeinsenbank court did not find that the relationship between
18 the parties at hand counseled against granting the § 1782 application. No. 16-mc-
19 80203, 2016 WL 6474224, at *4 (N.D. Cal. Nov. 2, 2016). In In re Mare Shipping
20 Inc., the § 1782 target was the lawyer of the party to the foreign proceeding, which
21 meant that the § 1782 target was, “for all intents and purposes”, the participant in
22 the foreign proceeding because “[d]ocuments in the possession of a party’s attorney
23 are deemed to be within the party’s possession, custody, or control”. No. 13-mc-
24 238, 2013 WL 5761104, at *4–5 (S.D.N.Y. Oct. 23, 2013) (citation omitted). And
25 in Republic of Kazakhstan v. Lawler, the court was almost entirely motived by the
26 fact that the foreign arbitral tribunal “believe[d] it could require [the foreign
27
28
6
1 participant] to produce [a] witness statement[] from [the § 1782 target]”. No. 2:20-
2 cv-00090, 2020 WL 417541, at *5 (D. Ariz. Jan. 27, 2020).1
3 With respect to Mondo Bongo, which is a participant in the Luxembourg
4 action, the central inquiry under Intel is whether the “evidence, available in the
5 United States, may be unobtainable absent § 1782(a) aid”. 542 U.S. at 264
6 (emphasis added). Here, the evidence is clear that the full scope of the discovery
7 Nouvel seeks is unobtainable under Luxembourg law. Indeed, to obtain documents
8 under Articles 284–88 of the Luxembourg New Code of Civil Procedure, a party
9 must describe each requested document in detail and show that it exists, is held by
10 the party from whom it is sought, and is relevant to the litigation. (Wiwinius Decl.
11 ¶ 12); ECF No. 31-26 at 31–32, Ex. LO-1, Tribunal du Travail, July 24, 2020,
12 No. 1982/20 at 30–31. This is why requests under Articles 284–88 are rarely made,
13 and only succeed when the subject is a specifically identified document. (Wiwinius
14 Decl. ¶¶ 15, 18); see also ECF No. 31-28 at 9–11, Ex. LO-3, Court of Appeal,
15 Jan. 22, 2014, No. 39407 at 72–74.
16 The Pitt Parties acknowledge that Articles 284–88 require that a document
17 sought must exist and be in the possession of the target (Hoffeld Decl. ¶ 11), but
18 never explain how Nouvel could demonstrate that either requirement is fulfilled
19 here. They simply ignore the evidence before Magistrate Judge Eick that
20 Luxembourg courts have expressly held that Articles 284–88 do not permit a general
21 search of another party’s files. (Wiwinius Decl. ¶ 10); see also Ex. LO-1, Tribunal
22 du Travail, July 24, 2020, No. 1982/20 at 30–31. Nor do the Pitt Parties
23 acknowledge that Luxembourg courts have expressly rejected discovery requests,
24
25
26
1
The Pitt Parties argue that because Nouvel would “insist” that Pitt and Grant serve
as “key document custodians” of Mondo Bongo, the first Intel factor weighs against
27 Nouvel. (Obj. at 4.) But even if they were to be named as custodians of Mondo
28 Bongo (to which the Pitt Parties have objected), they will likely have other relevant
documents outside their capacities as member, officer or agent of Mondo Bongo.
7
1 such as the ones at issue here, that seek descriptive categories of documents.
2 (Wiwinius Decl. ¶ 13); see also ECF No. 31-27 at 19–20, 26, Ex. LO-2, Court of
3 Appeal, Feb. 10, 2010, No. 31600 at 54–55, 61 (refusing a request for
4 correspondence between specific parties over a specified four-month period for
5 failure to clearly describe the documents requested); Ex. LO-3, Court of Appeal,
6 Jan. 22, 2014, No. 39407 at 73–74.
7 The Pitt Parties argue that a recent Luxembourg decision rejected a claim that
8 a request for “all” documents within a category was impermissibly broad. (Obj.
9 at 5.) But a close reading of that decision shows that it clearly favors Nouvel. The
10 court found that requests for the register of partners in a fund, the amounts of their
11 subscriptions, and their subscription contracts were sufficiently precise, but that
12 requests for “all instructions . . . concerning the register . . .”, “all written
13 communications between the staff . . . and the GP relating to the ‘Third Tranche’ of
14 the Fund”, and “all written documents . . . regarding KYC matters” were
15 insufficiently precise. (ECF No. 34-5 at 35–36, Commercial Judgment
16 TALCH02/00466 (Mar. 19, 2021) at 27–28 (emphasis added).) Here, Nouvel seeks
17 documents responsive to descriptive categories: “[a]ll documents concerning any
18 reason for” and “[a]ll documents concerning” any benefit from the 2013 Quimicum
19 10% Share Transfer. (ECF Nos. 2-1 at 10; 2-2 at 9; 2-3 at 9, Request Nos. 1–2.)
20 Those are the type of descriptive categorical requests that the Luxembourg court
21 rejected in its recent decision. Thus, the Pitt Parties’ own case confirms that the
22 discovery sought from Mondo Bongo is unobtainable in Luxembourg.
23 The Pitt Parties also argue that the first Intel factor disfavors Nouvel because
24 Nouvel “has not even ‘tried to obtain’ the requested discovery ‘by way of [foreign]
25 discovery tools’”. (Obj. at 4 (quoting In re Digitechnic, No. 2:C07-cv-00414, 2007
26 WL 1367697, at *4 (W.D. Wash. May 8, 2007) (alteration in original)).) But, as the
27 Magistrate Judge correctly found, “an applicant need not attempt to exhaust the
28 discovery procedures available in a foreign court before invoking section § 1782 in
8
1 federal court.” R&R at 10 (citing Illumina Cambridge, 2020 WL 820327, at *6);

2 accord, e.g., In re Bracha Found., 663 F. App’x 755, 765 (11th Cir. 2016); In re
3 Top Matrix Holdings Ltd., No. 18-mc-465, 2020 WL 248716, at *6 (S.D.N.Y.
4 Jan. 16, 2020). The Pitt Parties cite cases that wrongly imposed this requirement.
5 The Pitt Parties criticize the R&R for relying on Euromepa, S.A. v.
6 R Esmerian, Inc., 51 F.3d 1095 (2d Cir. 1995), for the proposition that the “Court
7 need not and should not referee a ‘battle-by-affidavit of international legal experts’”,
8 solely because Euromepa was decided before Intel. R&R at 7; (Obj. at 5–6.) But,
9 even after Intel, courts repeatedly cite and apply this language from Euromepa. See,
10 e.g., Mees v. Buiter, 793 F.3d 291, 298 n.9 (2d Cir. 2015); In re O’Keeffe, 646
11 F. App’x 263, 267 (3d Cir. 2016); In re Credit Suisse Virtuoso SICAV-SIF, No. 21-
12 mc-80308, 2022 WL 1786050, at *8 (N.D. Cal. June 1, 2022). Thus, the mere fact
13 that Euromepa was decided before Intel does not mean that the R&R erred in
14 relying on it. Khrapunov v. Prosyankin, 931 F.3d 922, 925–26 (9th Cir. 2019), and
15 IJK Palm LLC v. Anholt Servs. USA, Inc., 33 F. 4th 669, 680 (2d Cir. 2022), do not
16 counsel a different result. In both cases, the courts held that the district court needed
17 to evaluate foreign law to assess the mandatory § 1782 statutory factor of whether
18 the discovery was for use in a foreign proceeding in the first place, not the Intel
19 discretionary factors. Finally, In re Schlich, 893 F.3d 40, 50 (1st Cir. 2018), only
20 “decline[d]” to follow Euromepa insofar as Euromepa “plac[ed] the burden of proof
21 on the party opposing discovery” with respect to the second Intel factor.
22 The Pitt Parties are simply wrong in arguing that the submission of competing
23 affidavits on an Intel factor renders that factor “neutral”. See In re O’Keeffe, 646
24 F. App’x at 267–68 (holding that district court did not err in finding second Intel
25 factor weighed in favor of applicant, even when applicant and target submitted
26 “conflicting declarations” about the nature of the foreign tribunal). Here, in any
27 event, Nouvel submitted an affidavit authored by an independent, well-respected
28 jurist and supported by numerous citations to Luxembourg authorities. The Pitt
9
1 Parties submitted an affidavit consisting largely of ipse dixit statements of their

2 Luxembourg counsel. Thus, the R&R was right to find that the first Intel factor
3 favors discovery.
4 2. Factor 2: Luxembourg Courts Will Consider § 1782 Evidence.
5 The second Intel factor asks courts to consider “the receptivity of the foreign
6 government or court or agency abroad to U.S. federal-court judicial assistance”.
7 542 U.S. at 264. The R&R, at 8, explicitly addressed this factor and found that there
8 was a “significant likelihood” that “the subject discovery could lead to evidence
9 admissible in the [Luxembourgish] court[]”. That finding is correct.
10 The record evidence shows that the Luxembourg District Court would be
11 receptive to U.S. federal-court judicial assistance. (Wiwinius Decl. ¶¶ 23–27.) No
12 provision of Luxembourg law prohibits the admission of evidence obtained under
13 § 1782. (Wiwinius Decl. ¶ 23.) Moreover, because Luxembourg procedural law is
14 based on French procedural law, Luxembourg courts look to the decisions of French
15 courts in procedural matters. (Id. ¶ 24); see also ECF No. 31-29 at 13, Ex. LO-4,
16 Commercial Court, Oct. 19, 2011, No. 35715 at 88. At least three French courts
17 have held that obtaining evidence under § 1782 is not inconsistent with French
18 procedural law. (Wiwinius Decl. ¶ 25.) Given that French courts, applying nearly
19 identical law, have permitted the admission of evidence collected under § 1782, a
20 Luxembourg court would be highly likely to admit such evidence. (Id. ¶ 26.)
21 Most courts in this Circuit hold that unless there is “authoritative proof that a
22 foreign tribunal would reject evidence obtained with the aid of section 1782”, the
23 second Intel factor weighs in favor of granting discovery. In re Qualcomm Inc.,
24 No. 18-mc-80104-VKD, 2018 WL 3845882, at *3 (N.D. Cal. Aug. 13, 2018)
25 (emphasis added) (citation omitted) (collecting cases); accord In re Hattori, No. 21-
26 mc-80236, 2021 WL 4804375, at *4 (N.D. Cal. Oct. 14, 2021) (same). The Pitt
27 Parties provide no such proof. In contrast, Nouvel adduced substantial evidence that
28 Luxembourg courts would be receptive to evidence obtained via § 1782.
10
1 3. Factor 3: No Circumvention of Proof-Gathering Restrictions.

2 The third Intel factor considers whether a party has sought “to circumvent
3 foreign proof-gathering restrictions or other policies of a foreign country”. 542 U.S.
4 at 265. The R&R, at 8, found that § 1782 discovery would not circumvent
5 Luxembourg’s policy. That finding is well supported by the evidence.
6 The Pitt Parties fundamentally misunderstand the meaning of “proof-
7 gathering restrictions”, which “are best understood as rules akin to privileges that
8 prohibit the acquisition or use of certain materials, rather than as rules that fail to
9 facilitate investigation of claims by empowering parties to require their adversarial
10 and non-party witnesses to provide information”. Mees, 793 F.3d at 303 n.20; see
11 also In re Vahabzadeh, No. 20-mc-80116, 2020 WL 7227205, at *4 (N.D. Cal.
12 Dec. 8, 2020). Contrary to the Pitt Parties’ contention, “the third Intel factor does
13 not require exhaustion of remedies, discoverability, or admissibility”. In re Top
14 Matrix Holdings Ltd., 2020 WL 248716, at *6. It only considers whether the
15 foreign jurisdiction prohibits the discovery sought.
16 The evidence here shows that Luxembourg law does not prohibit the
17 discovery Nouvel seeks. (Wiwinius Decl. ¶ 23.) Thus, Nouvel does not seek to
18 circumvent Luxembourg’s policies or proof-gathering restrictions.
19 The cases the Pitt Parties cite on this Intel factor are distinguishable. Two
20 rely upon decisions in which the foreign tribunal had affirmatively prohibited the
21 discovery sought. See In re Kreke Immobilien, No. 13-mc-110, 2013 WL 5966916,
22 at *6 (S.D.N.Y. Nov. 3, 2013) (citing In re Microsoft Corp., 428 F. Supp. 2d 188,
23 195–96 (S.D.N.Y. 2006)); In re Cathode Ray Tube (CRT) Antitrust Litig., No. 4:07-
24 cv-05944, 2013 WL 183944, at *3 (N.D. Cal. Jan. 17, 2013) (citing In re Caratube
25 Int’l Oil Co., 730 F. Supp. 2d 101, 107–08 (D.D.C. 2010).) As the Pitt Parties seek
26 to do here, the court in In re Digitechnic wrongly imposed a “foreign
27 discoverability” requirement on material sought under § 1782, and improperly
28 placed the applicant in the Catch-22 situation the Seventh Circuit warned against in
11
1 Heraeus Kulzer, GmbH v. Biomet, Inc., 633 F.3d 591, 597 (7th Cir. 2011): chiding
2 the applicant for not seeking discovery in France because French discovery was
3 supposedly available, while finding that the applicant’s failure to seek such
4 discovery indicated that it was unavailable in France and concluding that the
5 applicant was attempting to circumvent French law. 2007 WL 1367697, at *5.2
6 4. Factor 4: Nouvel’s Requests Are Reasonable.
7 The fourth Intel factor asks whether the request is “unduly intrusive or
8 burdensome”. 542 U.S. at 265. The R&R, at 11–12, fully addresses the Pitt Parties’
9 arguments that the requests are burdensome, and properly rejected them.
10 In fact, Nouvel’s requests are not unduly burdensome. Nouvel served just
11 two requests that concern the Luxembourg Action. The Pitt Parties do not even
12 contest that the discovery Nouvel seeks is relevant to the Luxembourg Action.
13 Instead, the Pitt Parties contend that “Nouvel has equal access to an
14 overwhelming majority of the documents in question”. (Obj. at 8.) The Pitt Parties
15 rely on unsupported attorney argument and present no evidence that Nouvel already
16 possesses the documents it seeks. Their contention is also not true. For example,
17 Nouvel lacks the Pitt Parties’ internal correspondence and analysis about the 2013
18 Quimicum Share Transfer. And without that discovery, Nouvel cannot determine
19 whether it actually has all documents relevant to the transfer.
20 The Pitt Parties argue that the R&R’s conclusion that it is “‘inappropriate’ to
21 object to discovery on the ground that the requested documents are ‘equally
22 available’ to Nouvel” is “contrary to Federal Rule of Civil Procedure 26”. (Obj. at
23 8.) But settled law in this District rejects that argument. See Smith v. Montoya,
24
25
2
26 In re Gilead Pharmasset LLC is not instructive on this point because the court did
not adequately engage with the applicant’s argument that the requested materials
27 were outside the foreign court’s jurisdictional reach; nor did it explain which “less-
28 than-favorable discovery rules” the applicant supposedly “side-stepped”. No. 14-
mc-243 (GMS), 2015 WL 1903957, at *4−5 (D. Del. Apr. 14, 2015).
12
1 No. 2:20-cv-00392-VBF (DFM), 2021 WL 6618858, at *1 (C.D. Cal. July 21,

2 2021); see also Miller v. White, No. 2:14-cv-7543-GW (KK), 2020 WL 4001624, at
3 *6 (C.D. Cal. May 27, 2020); Nat’l Acad. of Recording Arts & Scis., Inc. v. On
4 Point Events, LP, 256 F.R.D. 678, 682 (C.D. Cal. 2009). And the Pitt Parties’ cases
5 do not actually hold that Rule 26 “prohibits” discovery of documents the requesting
6 party already has. In those cases, unlike here, the requests at issue lacked
7 reasonable subject matter or geographic limitations, In re Qualcomm Inc., 162 F.
8 Supp. 3d 1029, 1044 (N.D. Cal. 2016), sought irrelevant documents, In re Pioneer
9 Corp. v. Technicolor, Inc., No. 2:18-cv-04524, 2018 WL 4961911, at *10 (C.D. Cal.
10 Sept. 12, 2018), or only sought correspondence to which the applicant was a party,
11 Mees, 793 F.3d at 302 n.18.
12 The Pitt Parties argue that the Luxembourg requests should be narrowed to
13 the period before the parties’ 2019 dispute surrounding the 2013 Quimicum Share
14 Transfer. But, as the Magistrate Judge correctly concluded, the requests are
15 properly tailored to discover information during the relevant time frame given the
16 scope of the dispute initiated by Mondo Bongo in Luxembourg. R&R at 11–12.
17 B. DISCOVERY FOR THE FRENCH ACTION IS WARRANTED
18 As with the Luxembourg requests, the Magistrate Judge fully considered the
19 evidence related to Nouvel’s requests for the contemplated French Action, evaluated
20 the Intel factors, and properly recommended denying the Pitt Parties’ motion.
21 1. Factor 1: The Discovery Is Likely Unobtainable in France.
22 This factor weighs in favor of discovery because, as the Magistrate Judge
23 recognized, R&R at 8–9, the Pitt Parties and their documents are outside the
24 jurisdictional reach of the French courts. The Magistrate Judge also recognized that,
25 while discovery proceedings against other parties are ongoing in France, “the
26 discovery sought in this proceeding exceeds that sought in France in both time and
27 scope”. R&R at 10. The R&R’s findings on factor one are well-grounded.
28
13
1 The Pitt Parties, who all reside in the U.S., are not targets of the current
2 French discovery actions and are not expected to be parties to the contemplated
3 French Actions. Indeed, as Jean-Sébastien Borghetti, a Professor of Private Law at
4 Université Panthéon-Assas, explains, “the power of a French court or judge does not
5 extend beyond France’s borders”. (ECF No. 31-2 at 9, Borghetti Decl. ¶ 24.) This
6 principle applies to “any order pertaining to discovery measures”. (Id.) It is thus
7 beyond dispute that French courts cannot order discovery from the Pitt Parties.
8 The Pitt Parties seek to dodge this fundamental obstacle by misrepresenting
9 Nouvel’s § 1782 application and the status of the ongoing French proceedings.
10 First, the Pitt Parties argue that Nouvel’s application “turned on” the assertion that
11 Nouvel could not obtain any discovery from Chateau Miraval or Miraval Provence
12 in France. (Obj. at 9.) That is false. Nouvel’s application relied on the same
13 argument it makes here—that Intel factor one favors Nouvel because the Pitt Parties
14 are not expected to be parties to the French Action. (ECF No. 1 at 18–19.)3
15 Second, the Pitt Parties misleadingly argue that the discovery sought here is
16 available in France, pointing to the two Article 145 seizure orders Nouvel obtained
17 there. (Obj. at 9.) The Pitt Parties further contend that “[a]ll of the discovery
18 Nouvel seeks from respondents is also ‘in [the] possession’ of the French entities it
19 threatens to sue”. (Id. at 10.) The Pitt Parties are doubly wrong. To start, none of
20 the documents seized in France have been disclosed to Nouvel, and the French
21 Parties, who have vigorously attacked the Article 145 orders, are hotly contesting
22 whether any of the documents should be released to Nouvel. (See Borghetti Decl.
23 ¶¶ 19, 44–48; ECF No. 32-17 at 62, Ex. FO-17, Summons at ¶¶ 1–7.) It will take
24
25
3
26 Nouvel noted in its application that even if Grant were still a director of Chateau
Miraval—which Nouvel did not believe (ECF No. 1 at 19)—and could potentially
27 be named a defendant in France, Nouvel still likely could not obtain discovery from
28 him in France given the limits on French discovery. (Id.) But the Pitt Parties admit
that Grant is not currently a director (ECF No. 18-1 at 23 n.6), so the point is moot.
14
1 months for the French courts to resolve these challenges. (Borghetti Decl. ¶ 47.)
2 Even if the orders are not retracted in full, then a French judge will be required to
3 evaluate whether each seized document should be provided to Nouvel. (Id. ¶¶ 43–
4 45.) Accordingly, there is a significant chance that Nouvel will not receive all the
5 documents seized in France.
6 The Pitt Parties’ position that Nouvel can obtain what it needs in France is
7 especially disingenuous because the French Parties repeatedly argue in France that
8 the Article 145 orders should be retracted because Nouvel can obtain what it needs
9 from the Pitt Parties in the United States. (Ex. FO-17, Summons ¶¶ 3, 63–66, 133–
10 35, 176.) Thus, the Pitt Parties essentially seek to suppress any discovery in either
11 country.
12 More fundamental, discovery should proceed in both countries because the
13 requests at issue in each country concern different documents, different time
14 periods, and different targets. The Article 145 orders concern only three narrow
15 topics: trademarks, leases, and Quimicum and Nouvel. They do not cover many of
16 the subjects sought by Nouvel’s subpoenas: Grant’s appointment as director of
17 Chateau Miraval (Request No. 5); the finances, operations, governance, supervision,
18 or control of Chateau Miraval or Miraval Provence (Request Nos. 6–7); property
19 renovations (Request Nos. 6–7); or agreements between the Pitt Parties and Chateau
20 Miraval or the Perrin Parties (Request Nos. 8−9). (ECF Nos. 2-1 at 10–12; 2-2 at 9–
21 11; 2-3 at 9–11.) And French discovery limits, which require “precisely enumerated
22 keywords” as opposed to categorical document descriptions, would foreclose such
23 discovery. (Borghetti Decl. ¶¶ 17–18.) The Pitt Parties ignore these differences.
24 Moreover, the Article 145 orders cover only the period after June 1, 2019.
25 But Chateau Miraval’s directors have been taking actions for years that have harmed
26 Nouvel, such as spending tens of millions of euros on property renovations with no
27 apparent business purpose. And they have allowed Chateau Miraval’s valuable
28
15
1 trademarks to be registered by another company since at least 2017. Accordingly,

2 much of the relevant evidence cannot be obtained through the Article 145 orders.
3 Even where the topics of the subpoenas and the Article 145 orders overlap
4 somewhat, the documents actually in the possession of the French defendants likely
5 differ substantially from those in the possession of the Pitt Parties. For example, the
6 French Parties likely possess no documents concerning the responses of Quimicum
7 or the Pitt Parties to Nouvel’s requests for information because those requests were
8 not directed to them. (Request No. 11.) And documents formerly in the possession
9 of both the French Parties and Pitt Parties may have been lost or discarded in
10 France, leaving the Pitt Parties as the only source. The Pitt Parties also ignore these
11 points, all of which favor discovery.4
12 The Pitt Parties erroneously argue that “French corporate law prohibits
13 Nouvel, as an indirect shareholder of Chateau Miraval, from receiving the additional
14 documents it seeks from this Court”. (Obj. 10.) A French court did initially deny
15 Nouvel’s Article 145 request partially on the basis that only Chateau Miraval’s
16 parent could “claim to have access to all the information relating to [its]
17 management”. (ECF No. 34-2 at 4.) However, after Nouvel filed another Section
18 145 request for documents specifically related to the misappropriation of assets from
19 Chateau Miraval, and demonstrated, in accordance with applicable case law, that an
20 indirect shareholder had an interest in obtaining such discovery in the event of the
21 direct shareholder’s inaction, Nouvel’s request was granted. (ECF No. 18-6 at 14–
22
23
4
The Pitt Parties’ cases are inapposite. Each of In re LG Elecs. Deutschland GmbH,
24
No. 12-cv-1197-LAB (MDD), 2012 WL 1836283 (S.D. Cal. May 21, 2012); In re
25 Marano, No. 09-cv-80020-MISC-DLJ, 2009 WL 482649 (N.D. Cal. Feb. 25, 2009);
26 and In re IPC Do Nordeste, No. 12-mc-50624, 2012 WL 4448886 (E.D. Mich. Sept.
25, 2012) depended on the foreign tribunal’s ability to compel production of the
27 same documents sought in the § 1782 request, or the absence of evidence that it
28 could not do so. Here, most of the documents sought by Nouvel fall outside the
scope of the Article 145 orders.
16
1 16, Petition at 13–15) Given that it is the only—even if indirect—shareholder who

2 can defend Chateau Miraval’s interests, Nouvel is not prohibited by French law
3 from obtaining the discovery it seeks here.
4 2. Factor 2: French Courts Admit § 1782 Evidence.
5 The R&R, at 8, found there was a “significant likelihood” that “the subject
6 discovery could lead to evidence admissible in the [French] court[]”. That finding is
7 supported by the evidence and is not seriously contested by the Pitt Parties.
8 The unrebutted record is that French courts, following a principle established
9 by the Cour de Cassation (French Supreme Court), have repeatedly held that
10 discovery obtained under § 1782 may be admitted in French proceedings. (See
11 Borghetti Decl. ¶¶ 31–38; Ex. FO-5, Cour de Cassation, No. 77-10.109, Feb. 22,
12 1978, at 46; Ex. FO-9, Paris High Court, 15/00961, Sept. 29, 2016, at 106.) The Pitt
13 Parties’ objections do not contest this dispositive showing.
14 Rather than concede the point, the Pitt Parties repeat their argument that a
15 French court prohibited Nouvel from obtaining discovery under the initial
16 Article 145 request, but now extend the argument to conclude that French courts
17 would not receive § 1782 evidence because Nouvel is currently seeking some
18 similar evidence in France though Article 145. The Pitt Parties cite no authority for
19 this proposition. On the contrary, the French cases dealing with § 1782 “strongly
20 suggest that French courts would not regard a same party’s requests under 28 U.S.C.
21 § 1782 in the United States and under article 145 CPC in France as contradictory”.
22 (Borghetti Decl. ¶ 39.) Thus, there is no basis to conclude that French courts would
23 exclude evidence obtained in the United States in a merits proceeding.
24 3. Factor 3: No Circumvention of Proof-Gathering Restrictions.
25 This factor considers whether a foreign jurisdiction actively prohibits the
26 discovery sought. See In re Accent Delight Int’l Ltd., 791 F. App’x 247, 251 (2d
27 Cir. 2019). The R&R, at 8, found there is a “significant likelihood” that “[the
28 French Court] would not regard the subject discovery as an improper circumvention
17
1 of policy”. This finding is again well supported because the record shows that
2 France does not prohibit the discovery Nouvel seeks. (See Borghetti Decl. ¶¶ 39–
3 40.) The Pitt Parties’ argument that French law prohibits Nouvel from obtaining the
4 discovery sought here is not supported by the record. (See Section III.B.1, supra.)
5 The Pitt Parties argue that because some of Nouvel’s requests may partially
6 overlap with pending discovery requests in France, Nouvel is seeking to “preempt”
7 the decision of the French court. (Obj. at 11.) Not so. Under the relevant French
8 caselaw, “there is nothing inconsistent about simultaneously seeking article 145
9 discovery in France and 28 U.S.C. § 1782 discovery in the United States, even on
10 the same topics, given the territorial restriction to article 145 CPC”. (Borghetti
11 Decl. ¶ 39.) On the contrary, a French judge would expect a party to try to gather
12 evidence under the rules of the jurisdictions in which it is located and would not
13 view Nouvel’s § 1782 and Article 145 requests to be contradictory. (Id.)5
14 The Pitt Parties offer no response to this evidence. Instead, they cite cases
15 concerning rules in other jurisdictions that are not relevant here. In In re Microsoft
16 Corp., the European Commission provided a letter to counsel for the § 1782 target
17 expressly stating that the § 1782 applicant was seeking to circumvent its rules; the
18 court found that granting the application would undermine the Commission’s “rules
19 on confidentiality, which carefully balance the need for third party cooperation
20 against the need to preserve a defendant’s rights to defense”. 428 F. Supp. 2d at
21 195. In In re OOO Promnefstroy, No. M 19-99 (RJS), 2009 WL 3335608 at *9
22 (S.D.N.Y. Oct. 15, 2009), the court held that granting a § 1782 application “would
23 only frustrate the careful balance struck by the Dutch courts in the underlying Dutch
24 Proceedings”. Id. Also, unlike here, the § 1782 applicants sought the “same
25
26 5
Nouvel had offered to defer consideration of the discovery sought here to the
27 extent that it overlaps with the discovery sought in France. But, as the Magistrate
28 Judge recognized, the Pitt Parties categorically rejected this offer, R&R at 10 n.6,
and he declined to narrow the requests.
18
1 documents”, In re Microsoft, 428 F. Supp. 2d at 191, or the “same information”, In

2 re OOO Promnefstroy, 2009 WL 3335608, at *8, both domestically and abroad.
3 The Pitt Parties also argue that “the Intel analysis does not ask whether the
4 § 1782 relief would necessarily conflict with a foreign court order; it asks whether
5 such relief could conflict”. (Obj. at 12.) As noted above, that is not the law. And
6 the cases the Pitt Parties cite for this point do not actually support their contention.
7 In re Microsoft Corp. involved a direct conflict. 428 F. Supp. 2d at 195. In re XPO
8 Logistics, No. 15-mc-205, 2016 WL 3528195, at *3 (S.D.N.Y. June 22, 2016) and
9 In re Alves Braga, 789 F. Supp. 2d 1294, 1300 (S.D. Fla. 2011) considered only
10 whether to stay discovery ordered in an already-granted § 1782 application.
11 Notably, the Pitt Parties failed to inform the Court that in In re XPO Logistics, the
12 court later held that even though discovery proceedings were ongoing in France,
13 “[b]ecause XPO has not demonstrated that [the applicant] has been definitively
14 rebuffed in seeking such discovery in France, the Court has no basis to conclude that
15 [the applicant] is seeking to circumvent foreign proof-gathering restrictions.
16 Accordingly, the third Intel factor weighs in favor of [the applicant].” In re XPO
17 Logistics, Inc., No. 15-mc-205, 2017 WL 2226593, at *7 (S.D.N.Y. May 22, 2017),
18 aff’d, No. 15 Misc. 205 (LGS), 2017 WL 6343689 (S.D.N.Y. Dec. 11, 2017). The
19 same reasoning applies here and supports permitting the discovery Nouvel seeks.
20 4. Factor 4: Nouvel’s Requests Are Reasonable.
21 The R&R found the fourth Intel factor weighed in favor of discovery because
22 the Pitt Parties failed to demonstrate Nouvel’s requests would “impose any
23 unreasonable cost or burden” on the Pitt Parties, and because the Pitt Parties made
24 only a “conclusory assertion that the documents contain ‘commercially sensitive,
25 confidential information’”. R&R at 12. This analysis is correct.
26 The R&R, at 12, found that the Pitt Parties “have not demonstrated through
27 evidence anywhere within their voluminous submission that the requests will
28 impose any unreasonable cost or burden”. See also Heraeus Kulzer, 633 F.3d at
19
1 598; Gold v. Kaplan, No. 2:21-cv-03204-FLA-JDE, 2021 WL 6618643, at *5 (C.D.

2 Cal. Dec. 2, 2021) (“Conclusory, unsupported statements of expense and burden are
3 insufficient to demonstrate why the requested discovery is objectionable.”).
4 Nor could they. Nouvel’s requests are proportionate to the scope of the
5 contemplated French Action because they seek evidence relating to whether Chateau
6 Miraval’s directors have engaged in wasteful transactions and have unduly favored
7 the Pitt Parties. Nouvel’s application stated that its French Action will allege that
8 Chateau Miraval’s directors “appear to take management orders directly from
9 Mr. Pitt without consulting Quimicum or Nouvel” (ECF No. 1 at 6), have engaged
10 in “serious mismanagement” (id. at 10), and have “fail[ed] to manage Chateau
11 Miraval’s operations in the interests of all its shareholders” in light of “Mr. Pitt’s
12 and Mondo Bongo’s improper de facto control over Chateau Miraval” (id.). Nouvel
13 also alleges that since 2016, Chateau Miraval “has refused Nouvel’s requests for
14 information”. (Id. at 5.) Nouvel also requests documents concerning Chateau
15 Miraval’s finances, operations, and assets from the Pitt Parties to determine both
16 whether the business has been mismanaged and whether Chateau Miraval’s
17 directors are treating its indirect shareholders differently by sharing sensitive
18 business information with one (Mondo Bongo) but not the other (Nouvel). The
19 scope of Nouvel’s requests therefore matches the scope of its planned lawsuit.
20 The Pitt Parties argue that Nouvel is using § 1782 “as a platform to launch a
21 pre-suit investigation”. (Obj. 12.) But the Magistrate Judge found that “[r]eview of
22 the requests in particular, and the balance of the record in general, does not suggest
23 that Nouvel seeks to engage in any harassing ‘fishing expedition’ untethered to its
24 underlying allegations of wrongdoing by the Mondo parties.” R&R at 11. Indeed,
25 as the Magistrate Judge recognized, § 1782 permits discovery for a foreign
26 proceeding within reasonable contemplation. Intel, 542 U.S. at 247; In re Pioneer
27 Corp., 2018 WL 4961911, at *7. Nouvel has both (i) identified the specific legal
28 theories it plans to pursue abroad and (ii) retained foreign counsel (ECF No. 1 at
20
1 10), which courts have held are sufficient “objective indicia” that there is a foreign
2 claim within reasonable contemplation. In re Hedrick House Ltd., No. mc-20-
3 00048-RGK (DFM), 2020 WL 8457437, at *2 (C.D. Cal. May 29, 2020); In re
4 Ambercroft Trading Ltd., No. 18-mc-80074-KAW, 2018 WL 2867744, at *3 (N.D.
5 Cal. June 11, 2018). Nouvel’s situation is a far cry from the case cited by the Pitt
6 Parties, in which a party sought § 1782 aid “to identify other foreign venues in
7 which to bring suit”. In re Harbour Victoria Inv. Holdings Ltd. Section 1782
8 Petitions, No. 15-mc-127, 2015 WL 4040420, at *9 (S.D.N.Y. June 29, 2015).
9 The Pitt Parties’ argument that Nouvel should be denied access to
10 “confidential information” because Nouvel and Stoli Group “could use respondents’
11 information against Chateau Miraval and Miraval Provence” (Obj. at 13) lacks any
12 support. The Pitt Parties’ reckless accusation that the Stoli Group seeks to harm
13 Chateau Miraval is contradicted by the evidence. In addition, protections against
14 harm are available. Documents filed with French courts cannot be accessed by third
15 parties. (Borghetti Decl. ¶ 49.) And the R&R recommends the issuance of a
16 protective order concerning the use of the discovery, further limiting potential risk.
17 C. THE COURT SHOULD NOT GRANT A STAY
18 A stay is not appropriate. The Pitt Parties’ continuous attempts to avoid
19 providing the discovery ordered in January are causing Nouvel serious prejudice.
20 Courts consider four factors when determining whether to issue a stay
21 pending appeal: “(1) whether the stay applicant has made a strong showing that he
22 is likely to succeed on the merits; (2) whether the applicant will be irreparably
23 injured absent a stay; (3) whether issuance of the stay will substantially injure the
24 other parties interested in the proceeding; and (4) where the public interest lies.”
25 Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012). The Pitt Parties do not
26 acknowledge these requirements and have utterly failed to meet them.
27 First, the Pitt Parties’ arguments about Euromepa do not demonstrate that
28 they are likely to succeed on the merits. To the contrary, as demonstrated in
21
1 Section III.A.1, the Magistrate Judge’s reliance on Euromepa was not contrary to
2 the Supreme Court’s holding in Intel. Moreover, as demonstrated above, the R&R
3 is well supported by the record and firmly grounded in applicable law.
4 Second, the Pitt Parties have not made a showing of irreparable harm.
5 Responding to discovery requests “during a pending appeal is an insubstantial harm
6 in the context of § 1782”. In re Gyptec S.A., No. 16-cv-20810, 2017 WL 10978838,
7 at *1 (S.D. Fla. Nov. 2, 2017).
8 Third, Nouvel would be substantially injured in the event of a stay. The
9 Luxembourg Action is being actively litigated, and Nouvel has a current need in that
10 action for the information it seeks through this application. Similarly, Nouvel is
11 suffering real, continuing harm from the actions of the French Parties with respect to
12 Chateau Miraval. Nouvel must move as quickly as possible to commence the
13 French Action to try to mitigate the ongoing commercial harm to Chateau Miraval
14 from the misuse of its intellectual property and expenditures on Pitt’s vanity projects
15 while Pitt behaves as the exclusive owner and de facto manager of Chateau Miraval.
16 A stay only furthers the Pitt Parties’ attempts to prejudice Nouvel and deprive it of
17 its rights. Indeed, the Pitt Parties caused significant delay since the Magistrate
18 Judge granted Nouvel’s application by evading service for months.
19 Fourth, “further delay undermines judicial efficiency and is against the public
20 interest”. In re Republic of Ecuador, No. 11-mc-80171 CRB (NC), 2012 WL
21 13187178, at *5 (N.D. Cal. Dec. 19, 2012). “In the litigation context, delay is not
22 only of practical concern, as it results in a decrease in evidentiary quality and
23 witness availability, but also of social concern, as it is cost prohibitive and threatens
24 the credibility of the justice system.” Chavez v. Young Am. Ins. Co., No. 06-cv-
25 02419-PSF-BNB, 2007 WL 683973, at *2 (D. Colo. Mar. 2, 2007) (citation
26 omitted).
27 IV. CONCLUSION
28 Nouvel respectfully requests that this Court adopt the R&R in full.
22
1 Dated: July 12, 2022

2 Respectfully submitted,
3 By: /s/ Keith R. Hummel
4
CRAVATH, SWAINE & MOORE LLP
5 Keith R. Hummel (Pro Hac Vice)
(N.Y. Bar No. 2430668)
6
Worldwide Plaza
7 825 Eighth Avenue
New York, NY 10019
8
Telephone: (212) 474-1000
9 Facsimile: (212) 474-3700
10
LTL ATTORNEYS LLP
11
JAMES LEE (Bar No. 192301)
12 ENOCH LIANG (Bar No. 212324)
13 JOE TUFFAHA (Bar No. 253723)
LTL ATTORNEYS LLP
14 300 South Grand Avenue, Suite 1400
15 Los Angeles, CA 90071
Telephone: (213) 612-8900
16 Facsimile: (213) 612-3773
17
Attorneys for Applicant
18 NOUVEL, LLC
19
20
21
22
23
24
25
26
27
28
23

In Re Ex Parte Application of Cacdce-22-00004 0039.0

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Case 2:22-mc-00004-MCS-E Document 39 Filed 07/12/22 Page 1 of 30 Page ID #:1612

1 KEITH R. HUMMEL (Pro Hac Vice)

23 Judge: Honorable Mark C. Scarsi

RESPONSE TO OBJECTIONS TO REPORT AND RECOMMENDATION

RESPONSE TO OBJECTIONS TO REPORT AND RECOMMENDATION

7 Akebia Therapeutics, Inc. v. FibroGen, Inc.,

18 Illumina Cambridge Ltd. v. Complete Genomics, Inc.,

1 In re Credit Suisse Virtuoso SICAV-SIF,

14 In re Hedrick House Ltd.,

22 In re Lab. Ct. of Braz.,

1 In re XPO Logistics, Inc.,

27 Luxembourg Tribunal du Travail, No. 1982/20, July 24, 2020 .................................. 7

1 Statutes & Rules

1 Nouvel respectfully submits this Response to the Objections of Mondo

RESPONSE TO OBJECTIONS TO REPORT AND RECOMMENDATION

1 A district court is “not required to address explicitly every [Intel] factor”.

1 federal court.” R&R at 10 (citing Illumina Cambridge, 2020 WL 820327, at *6);

1 Parties submitted an affidavit consisting largely of ipse dixit statements of their

1 3. Factor 3: No Circumvention of Proof-Gathering Restrictions.

1 No. 2:20-cv-00392-VBF (DFM), 2021 WL 6618858, at *1 (C.D. Cal. July 21,

1 trademarks to be registered by another company since at least 2017. Accordingly,

1 16, Petition at 13–15) Given that it is the only—even if indirect—shareholder who

1 documents”, In re Microsoft, 428 F. Supp. 2d at 191, or the “same information”, In

1 598; Gold v. Kaplan, No. 2:21-cv-03204-FLA-JDE, 2021 WL 6618643, at *5 (C.D.

1 Dated: July 12, 2022

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