In The United States Court of Appeals For The Ninth Circuit: Attorneys For Petitioner-Appellee Nouvel, LLC

Case: 22-55737, 08/10/2022, ID: 12514571, DktEntry: 8-1, Page 1 of 28
Case No. 22-55737
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
NOUVEL, LLC,
Petitioner-Appellee,
v.
MONDO BONGO, LLC, WILLIAM B. PITT, and WARREN GRANT,
Respondents-Appellants.
Appeal from the United States District Court

for the Central District of California
Case No. 2:22-mc-00004-MCS-CFE
The Honorable Mark C. Scarsi, United States District Judge
APPELLEES’ OPPOSITION TO APPELLANTS’ EMERGENCY MOTION

FOR STAY PENDING APPEAL
Joedat H. Tuffaha (Bar No. 253723) Keith Hummel
Prashanth Chennakesavan CRAVATH, SWAINE & MOORE, LLP
(Bar No. 284022) Worldwide Plaza
LTL ATTORNEYS LLP 825 Eighth Avenue
300 South Grand Avenue New York, NY 10019
Suite 1400 Telephone: (212) 474-1000
Los Angeles, CA 90071 Facsimile: (212) 474-3700
Telephone: (213) 612-8900
Facsimile: (213) 612-3773
Attorneys for Petitioner-Appellee Nouvel, LLC
August 10, 2022

CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, Appellee Nouvel,
LLC states the following: Nouvel, LLC is a wholly owned subsidiary of Tenute
del Mondo B.V. Tenute del Mondo is a wholly owned subsidiary of Stoli Group
Holding Limited. No publicly held corporation owns 10% or more of the stock of
Stoli Group Holding Limited.

TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES ................................................................................... iii
INTRODUCTION .....................................................................................................1
RELEVANT BACKGROUND ................................................................................. 3
HISTORY OF THE PROCEEDINGS ....................................................................... 5
LEGAL STANDARD ................................................................................................6
ARGUMENT .............................................................................................................7
I. The Pitt Parties Are Not Likely To Succeed on the Merits. ................. 7
A. The District Court Did Not Abuse Its Discretion in

Declining To Conclusively Determine Certain
Disputed Issues of Foreign Law. ................................................ 7
B. The District Court Did Not Fail To Address Any

International Comity Concerns Raised by the
Subpoenas. ................................................................................11
II. The Pitt Parties Will Not Be Irreparably Harmed Absent a

Stay. .....................................................................................................14
III. Nouvel Will Be Substantially Injured by a Stay. ................................18
IV. The Public Interest Does Not Favor a Stay. ........................................19
CONCLUSION ........................................................................................................20
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Advanced Micro Devices, Inc. v. Intel Corp.,

292 F.3d 664 (9th Cir. 2002) ................................................................................8
AIS GmbH Aachen Innovative Sols. v. Thoratec LLC,

762 F. App’x 447 (9th Cir. 2019) .................................................................6, 8, 9
Akebia Therapeutics, Inc. v. FibroGen, Inc.,

793 F.3d 1108 (9th Cir. 2015) ..........................................................................7, 9
Becker v. U.S.,
451 U.S. 1306 (1981) ..........................................................................................18
Bernhardt v. Cnty. of Los Angeles,
279 F.3d 862 (9th Cir. 2002) ..............................................................................17
Church of Scientology of California v. U.S.,
506 U.S. 9 (1992) ................................................................................................16
In re Application of Hornbeam Corp.,

No. 14-mc-424, 2017 WL 2241522 (S.D.N.Y. May 22, 2017)..........................20
In re Application of HRC-Hainan Holding Co. LLC v. Yihan Hu,
No. 20-15371 (9th Cir. Mar. 30, 2020) (order) .................................................... 6
HRC-Hainan Holding Co., LLC v. Yihan Hu, No. 19-MC-80277-TSH,

2020 WL 1274877 (N.D. Cal. Mar. 17, 2020 ...............................................15, 16
In re Application of Procter & Gamble Co.,

334 F. Supp. 2d 1112 (E.D. Wis. 2004) .............................................................19
In re Burrell,
415 F.3d 994 (9th Cir. 2005) ..............................................................................16
In re Gorsoan Ltd.,
No. 18-mc-431, 2020 WL 4194822 (S.D.N.Y. Jul. 21, 2020) ...........................20
iii
In re Gushlak,
No. 11-mc-0218, 2012 WL 2564466 (E.D.N.Y. Jan. 30, 2012) ........................15
In re Gyptec S.A.,
No. 16-cv-20810, 2017 WL 10978838 (S.D. Fla. Nov. 2, 2017) .......................15
In re Microsoft Corp.,
428 F. Supp. 2d 188 (S.D.N.Y. 2006) ................................................................13
In re O’Keeffe,
646 F. App’x 263 (3d Cir. 2016) .......................................................................... 9
In re OOO Promnefstroy,
No. M 19-99, 2009 WL 3335608 (S.D.N.Y. Oct. 15, 2009) ..............................13
In re Request For Jud. Assistance from Seoul Dist. Crim. Ct.,

555 F.2d 720 (9th Cir. 1977) ............................................................................8, 9
Intel Corp. v. Advanced Micro Devices, Inc.,
542 U.S. 241 (2004) .....................................................................................passim
John Doe Agency v. John Doe Corp.,
488 U.S. 1306 (1989) ..........................................................................................17
JSC MCC EuroChem v. Chauhan,
No. 18-5890, 2018 WL 9650037 (6th Cir. Sept. 14, 2018)................................15
Khrapunov v. Prosyankin,
931 F.3d 922 (9th Cir. 2019) ............................................................................8, 9
Lopez v. Heckler,
713 F.2d 1432 (9th Cir. 1983) .............................................................................. 6
Mangouras v. Squire Patton Boggs,
980 F.3d 88 (2d Cir. 2020) .................................................................................16
Mees v. Buiter,
793 F.3d 291 (2d Cir. 2015) .............................................................................8, 9
Nat. Res. Def. Council, Inc. v. Winter,
502 F.3d 859 (9th Cir. 2007) ..............................................................................17
iv
Nat’l Archives & Records Admin. v. Favish,

541 U.S. 157 (2004) ............................................................................................17
Nken v. Holder,
556 U.S. 418 (2009) ........................................................................................6, 16
Rothe v. Aballí,
No. 20-12543, 2021 WL 4429814 (11th Cir. Sept. 27, 2021)............................16
Scrum All., Inc. v. Scrum, Inc.,

No. 4:20-cv-227, 2021 WL 720703 (E.D. Tex. Feb. 24, 2021) .........................19
Virginian Ry. Co. v. United States,

272 U.S. 658 (1926) ..............................................................................................6
Wisdom Imp. Sales Co. v. Labatt Brewing Co.,

339 F.3d 101 (2d Cir. 2003) ...............................................................................19
ZF Auto, U.S., Inc. v. Luxshare, Ltd.,
142 S. Ct. 2078 (2022) ........................................................................................13
Statutes
28 U.S.C. § 1782 ...............................................................................................passim
v
Nouvel respectfully submits this opposition to the emergency motion of
Appellants Mondo Bongo, LLC, William B. Pitt, and Warren Grant (collectively,
the “Pitt Parties”) for a stay pending appeal of the District Court’s July 22, 2022
order denying the Pitt Parties’ motion to vacate a January 12, 2022 order
authorizing discovery under 28 U.S.C. § 1782 and to quash related subpoenas.
INTRODUCTION
The Pitt Parties begin by misrepresenting the basis of this § 1782 action.
This action has its roots in Pitt’s ongoing illegal conduct against his former wife,
Angelina Jolie, and her former company, Nouvel, since Jolie filed for divorce in
2016. Pitt has cut Jolie and Nouvel out of any meaningful participation in their
jointly owned Luxembourg company, Quimicum, and has stripped assets from
Quimicum’s wholly owned subsidiary, the French wine company Chateau Miraval.
Although Pitt’s illegal conduct continued after Jolie sold Nouvel to a
subsidiary of the Stoli Group in 2021, Nouvel does not seek discovery here for use
in Pitt’s separate lawsuit—filed in California state court after and apparently in
retaliation for Nouvel’s § 1782 petition—seeking to set aside that sale. Instead,
Nouvel seeks discovery to defend itself against Pitt’s continuing, baseless legal
attacks on it in Luxembourg and to seek legal redress in France for the
Pitt-masterminded attempts to misappropriate Chateau Miraval’s assets.
No basis exists for a stay. The Pitt Parties do not dispute that the statutory
factors set forth in 28 U.S.C. § 1782 are met in this case. Their argument that the
District Court abused its discretion in applying the discretionary Intel factors fails
as a matter of law. Under this Court’s precedents, the District Court was not
required to fully resolve disputed issues of foreign law in applying those factors.
Nevertheless, the District Court did consider the questions of Luxembourgish and
French law presented by the parties and properly concluded that foreign law does
not prohibit the requested discovery. The Pitt Parties cannot prevail on the merits.
Nor will the Pitt Parties suffer any irreparable harm in responding to routine
discovery requests. The District Court has already prohibited Nouvel from using
the documents other than for purposes of the foreign litigations. By contrast, the
evidentiary phase of the Luxembourg proceeding is occurring now, and could
conclude at any time at the discretion of the Luxembourgish judge. Should Pitt be
permitted to run out the clock on the evidence-gathering phase in Luxembourg,
Nouvel will be irreparably harmed. And Nouvel must act expeditiously in France
to remedy the ongoing harm Pitt and his allies are inflicting on Chateau Miraval,
including giving away its valuable trademarks for no compensation. Moreover,
declining to issue a stay does not moot a § 1782 appeal because the Court can
order the return or destruction of documents if it ultimately grants the appeal.
Thus, all of the relevant factors weigh in favor of denying the Pitt Parties’
emergency request for a stay.
2
RELEVANT BACKGROUND
The Pitt Parties provide no factual support for their claim of irreparable
harm. In lieu of evidentiary support, the Pitt Parties focus much of their
“background” on repeating irrelevant and often false allegations Pitt makes in his
complaint challenging Jolie’s lawful sale of Nouvel. Nouvel here provides a
summary of the facts that are actually relevant to this § 1782 appeal.
The Luxembourg Action
When Mondo Bongo (owned by Pitt) and Nouvel (owned by Jolie) acquired
Quimicum in 2008, they split ownership 60–40. In 2013, Pitt voluntarily caused
Mondo Bongo to transfer 10% of the outstanding shares of Quimicum to Nouvel
(the “2013 Share Transfer”), making Nouvel and Mondo Bongo equal 50–50
owners of Quimicum. In 2021, Pitt caused Mondo Bongo to sue Nouvel and
Quimicum in Luxembourg (the “Luxembourg Action”) in an effort to annul the
2013 Share Transfer on the basis that the eight-year-old transaction lacked
“cause”—in civil law, a benefit or goal. (Ex. 1 at 4, 12; Ex. 2 at 20–21.)
As discussed below, Pitt’s objective is to take de jure control over
Quimicum to hide and legitimize his usurpation of corporate authority and
appropriation of the business of Chateau Miraval. In this § 1782 action, Nouvel
seeks documents to defend itself in the Luxembourg Action, including documents
concerning the reason for and any benefits derived from the 2013 Share Transfer,
3
which Nouvel will use to show that the transfer was supported by “cause”. (Exs. 3
at 31; 4 at 41; 5 at 51, Request Nos. 1–2.)
The Contemplated French Action
Control of Quimicum is critical because it owns and controls Chateau
Miraval and, by extension, its incredibly valuable wine business, which includes a
world-class rosé. Unable legally to control Chateau Miraval through Quimicum
(because Nouvel owns 50%), Pitt masterminded a successful plan to freeze out
Jolie and Nouvel, and obtain de facto control—which he enjoys to this day.
Pitt imposed a shareholder deadlock at Quimicum to prevent Jolie and
Nouvel from accessing information about or supervising Chateau Miraval. (Ex. 6
at 57–59.) Ironically, while accusing the Stoli Group of plotting a “hostile
takeover” (Ex. 7 at 89), Pitt has used the deadlock he engineered to take full
control of Chateau Miraval. Chateau Miraval’s directors appear to take
management orders directly from Pitt, and they even attempted to appoint Pitt’s
agent—Appellant Warren Grant—as a director of Chateau Miraval. (Ex. 8 at 111,
113). That effort failed, but Pitt still runs Chateau Miraval as if it were his
personal fiefdom, pugnaciously refusing all reasonable efforts to resolve the
deadlock at Quimicum and blocking Nouvel’s efforts to share in Chateau Miraval’s
governance on an equal footing with the other 50% owner, Pitt’s wholly owned
company, Appellant Mondo Bongo. (Exs. 9; 6 at 57–59; 10; 11 at 139–142.)
4
Pitt’s usurpation of control over Chateau Miraval has had dire consequences.
Pitt and his directors appear to have wasted the Chateau’s assets, spending millions
on renovations that lack a business function, such as a €1.1 million swimming
pool. (Ex. 12 ¶ 9.) More troubling, since at least 2017, Chateau Miraval’s
directors, without authorization, have permitted a different French entity, Miraval
Provence, to register as its own Chateau Miraval’s trademarks—among the
Chateau’s most valuable assets—apparently for no compensation. (Id. ¶¶ 7–8.)
To mitigate and remedy this situation, Nouvel plans to file an action in
France against, among others, Chateau Miraval’s directors and Miraval Provence
to restore proper governance and to redress harm to shareholders (the “French
Action”). Here, Nouvel seeks documents through § 1782 concerning the assets
and supervision of Chateau Miraval and Miraval Provence for use in the French
Action. (Exs. 3 at 31–33; 4 at 41–43; 5 at 51–53, Request Nos. 3–11.)
HISTORY OF THE PROCEEDINGS
Magistrate Judge Eick granted Nouvel’s § 1782 application on January 12,
2022. (Ex. 13.) On March 17, 2022, the Pitt Parties moved to vacate the order and
quash the subpoenas issued thereunder. (Ex. 7.) Magistrate Judge Eick
recommended denying the Pitt Parties’ motion on June 8, 2022. (Ex. 14.)
The Pitt Parties filed Objections to the Magistrate Judge’s Report &
Recommendation (“R&R”) on June 28, 2022, and therein requested that any order
5
be stayed pending appeal. (Ex. 15.) The District Court fully adopted the R&R on
July 22, 2022, after reviewing it de novo. (Ex. 16.) The District Court denied the
Pitt Parties’ request for a stay, both on the merits and because the Pitt Parties had
inappropriately requested affirmative relief in their Objections. (Id. at 3–4.)
LEGAL STANDARD
An appellate court reviews a district court’s denial of a stay pending appeal
for abuse of discretion, Lopez v. Heckler, 713 F.2d 1432, 1435–36 (9th Cir. 1983),
as it does a district court’s award of § 1782 discovery, AIS GmbH Aachen
Innovative Sols. v. Thoratec LLC, 762 F. App’x 447, 449 (9th Cir. 2019).
In deciding a motion to stay pending appeal, courts consider four factors:
“(1) whether the stay applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be irreparably injured absent a
stay; (3) whether issuance of the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public interest lies.” Nken v.
Holder, 556 U.S. 418, 434 (2009) (citation omitted). “A stay is not a matter of
right, even if irreparable injury might otherwise result to the appellant. It is an
exercise of judicial discretion.” Virginian Ry. Co. v. United States, 272 U.S. 658,
672–73 (1926) (citation omitted). This Court does not stay all § 1782 appeals
automatically. See In Re Application of HRC-Hainan Holding Co. LLC v. Yihan
Hu, No. 20-15371 (9th Cir. Mar. 30, 2020) (order).
6
ARGUMENT
I. The Pitt Parties Are Not Likely To Succeed on the Merits.
A. The District Court Did Not Abuse Its Discretion in Declining To

Conclusively Determine Certain Disputed Issues of Foreign Law.
The Pitt Parties argue that they are likely to succeed on the merits because,
they maintain, Intel Corp. v. Advanced Micro Devices, Inc. required the District
Court to make conclusive determinations about disputed issues of foreign law. 542
U.S. 241 (2004); (Mot. 9–10.) This is not the correct standard. This Court has
held that district courts do not abuse their discretion by declining to resolve
disputes about the content of foreign law in weighing the Intel factors.
Akebia Therapeutics, Inc. v. FibroGen, Inc. is directly on point. 793 F.3d
1108 (9th Cir. 2015). There, the parties submitted competing affidavits about the
admissibility of evidence under foreign law (Exs. 17 at 196-99; 18; 19 at 223-24;
20), and the district court expressly declined to resolve the dispute, allowing
discovery. (Ex. 21 at 266-68.) The appellant argued that the district court erred in
concluding that it was “not required and in fact declines to undertake the extensive
efforts required to determine what types of evidence the [foreign tribunals] would
or would not consider”. (Id.; Ex. 22 at 295.) This Court rejected that argument,
holding that the district court had not “abused its discretion by giving ‘short shrift’
to the nonexclusive [Intel] factors” because “[t]he district court was not required to
address explicitly every [Intel] factor or argument . . . .” 793 F.3d at 1112.

7
In AIS GmbH Aachen Innovative Solutions. v. Thoratec LLC, the appellant
argued that because the court had refused to accept its evidence of foreign law and
had admitted that it was “unable to judge which side’s telling is more accurate”
about the admissibility of evidence in Germany (Ex. 23 at 330, 332−36), “there
was a wholesale failure to consider relevant evidence and to apply the controlling
test set forth” in Intel. (Id. at 338−39.) This Court rejected that argument, and
upheld the grant of § 1782 discovery. 762 F. App’x. at 449.
These decisions reflect this Court’s longstanding guidance that “federal
courts, in responding to [§ 1782] requests, should not feel obliged to involve
themselves in technical questions of foreign law”. In re Request For Jud.
Assistance from Seoul Dist. Crim. Ct., 555 F.2d 720, 723 (9th Cir. 1977). That
makes sense because § 1782’s purpose is to facilitate discovery in aid of foreign
litigation, not to erect obstacles to such discovery. See Advanced Micro Devices,
Inc. v. Intel Corp., 292 F.3d 664, 669 (9th Cir. 2002), aff’d, 542 U.S. 241 (2004).
Requiring district courts to conduct mini-trials on all disputed issues of foreign law
would unnecessarily consume judicial resources and frustrate that purpose. See
Mees v. Buiter, 793 F.3d 291, 299 (2d Cir. 2015).
The Pitt Parties misrepresent the holding of their primary authority,
Khrapunov v. Prosyankin, 931 F.3d 922 (9th Cir. 2019). Khrapunov involved a
situation in which the foreign proceedings were “finally decided” against the
8
§ 1782 applicant—and his request to appeal that loss was denied—while the
§ 1782 ruling was on appeal to this Court. Id. at 924. As a result of that
development, “the second statutory requirement—that the discovery be for use in a
foreign ‘proceeding’—[wa]s called into doubt”. Id. at 925. This Court remanded
so that the district court could engage in “additional fact-finding” with respect to
the Petitioner’s argument that the statutory requirement was satisfied based on the
possibility of “reopening” the foreign proceedings. Id. at 925–26.
That some district courts may have fully resolved issues of foreign law in
weighing the Intel factors does not change the analysis. This Court’s precedents
make clear that a district court does not abuse its discretion in declining to resolve
disputed issues of foreign law. See Akebia Therapeutics, 793 F.3d 1108; AIS
GmbH Aachen Innovative Sols., 762 F. App’x 447; In re Request For Jud.
Assistance from Seoul Dist. Crim. Ct., 555 F.2d 720. Other Circuits are in accord.
See Mees, 793 F.3d at 298–99 (rejecting “speculative forays into legal territories
unfamiliar to federal judges”) (citation omitted); In re O’Keeffe, 646 F. App’x 263,
267 (3d Cir. 2016) (“We have never required district courts to determine whether
particular evidence would be admissible in a foreign court.”).
In any event, contrary to the Pitt Parties’ repeated assertions to the contrary
(Mot. 2, 8–12), the District Court did make findings about foreign law. With
respect to the first Intel factor, the District Court did not “discard[] the Pitt Parties’
9
evidence demonstrating that Luxembourg would permit the discovery” sought.
(Mot. 10.) Instead, the District Court rejected the Pitt Parties’ position “based on
the parties’ submissions of expert testimony”. (Ex. 16 at 188.) Similarly, in
holding that it was doubtful the discovery sought was available in Luxembourg, the
Magistrate Judge analyzed and even quoted from the declaration of the Pitt Parties’
expert, finding that it “underscor[ed] this doubt”. (Ex. 14 at 159 n.5.) And with
respect to the third Intel factor, after considering the parties’ evidence, the District
Court expressly found that “the discovery sought here does not appear to be
prohibited under Luxembourgish and French court procedures”. (Ex. 16 at 189.)
That the District Court credited Nouvel’s expert evidence is hardly
surprising. Nouvel submitted declarations from two independent, well-respected
jurists: the former president of the Luxembourg Supreme Court and a tenured
professor at France’s top law school. (Exs. 24 ¶ 1; 25 ¶ 1.) In contrast, the Pitt
Parties submitted declarations solely from their own foreign counsel and, even
then, they did not submit anything from their French counsel to refute the
discussion of French law presented in Nouvel’s declaration from the French law
professor.
The Pitt Parties’ argument on the third Intel factor that a French court “held
that Nouvel was prohibited from accessing Château Miraval’s” documents
“because Nouvel is only an indirect shareholder of Château Miraval” (Mot. 11) is
10
highly misleading. After Nouvel demonstrated, in accordance with applicable
French case law, that an indirect shareholder, like Nouvel, has an interest in
obtaining discovery in the event of the direct shareholder’s inaction, the very same
French court reversed itself and granted Nouvel’s seizure application. (Ex. 26 at
415-19 (proposed order granted Feb. 10, 2022).)
Because this Court has rejected the Pitt Parties’ argument that a district court
abuses its discretion in declining to make findings of foreign law in an Intel
analysis and because the District Court did make findings on foreign law, the Pitt
Parties have no chance of succeeding on the merits.
B. The District Court Did Not Fail To Address Any International

Comity Concerns Raised by the Subpoenas.
The Pitt Parties’ argument that the District Court erred by failing to consider
international comity is completely unsupported and contrary to the record.
To start, the Pitt Parties do not claim the discovery would raise any comity
concerns with respect to the Luxembourg Action. Nor could they, because, as the
record shows, and the District Court found, the Luxembourg court will receive
evidence produced under a § 1782 subpoena. (Ex. 16 at 188−89.)
Likewise, no comity concerns arise with respect to the French Action. The
District Court expressly found that “the discovery sought here does not appear to
be prohibited under [] French court procedures”. (Ex. 16 at 189.) For support, the
11
District Court cited Nouvel’s French law expert, who declared that “there is
nothing inconsistent about simultaneously seeking article 145 discovery in France
and [] § 1782 discovery in the United States, even on the same topics, given the
territorial restriction to article 145 CPC”. (Ex. 25 ¶ 39.) Indeed, the discovery
sought by Nouvel is especially unlikely to raise comity concerns because the
requests at issue here concern different targets, different documents, and different
time periods than the requests in France. (Compare Exs. 3−5 with Ex. 26.)
Moreover, the two categories of documents with which the Pitt Parties take
specific issue raise no international comity concerns. First are what the Pitt Parties
characterize as requests for documents that the “French courts are currently
reviewing”. (Mot. 13.) At most, these documents raise questions of
discoverability in the foreign jurisdiction. But Intel itself cautions that comity and
parity concerns “do not permit our insertion of a generally applicable foreign-
discoverability rule”. See 542 U.S. at 261. Second are documents that the Pitt
Parties contend the “French courts have . . . prohibited [Nouvel] from accessing”.
(Mot. 13.) But, as noted above, the French court later reversed itself and granted
Nouvel’s request to seize documents. 1 (See Section I.A, supra.)
1
The Pitt Parties’ suggestion that there is some substantive principle of
French law prohibiting indirect shareholders from obtaining documents pertaining
to their investments is undercut by the fact that the Pitt Parties do not dispute
having access to the documents—despite being indirect shareholders themselves.
12
Although the Pitt Parties quote a single line from the Supreme Court’s recent
opinion in ZF Auto, U.S., Inc. v. Luxshare, Ltd. noting that the “animating purpose
of § 1782 is comity”, 142 S. Ct. 2078, 2088 (2022), their argument misses the
mark. The quoted dicta from ZF Auto—a case concerning whether private arbitral
bodies constitute “foreign or international tribunals” within the meaning of
§ 1782—does not disturb or contradict the Court’s prior analysis of the statute’s
animating purpose in Intel. As the Intel Court framed these comity concerns,
§ 1782(a)’s “objective [is] to assist foreign tribunals in obtaining relevant
information that the tribunals may find useful but, for reasons having no bearing on
international comity, they cannot obtain under their own laws”. 542 U.S. at 262.
The Pitt Parties’ other cited cases are distinguishable. In re OOO
Promnefstroy involved a § 1782 application filed for the exact same information
that had been unsuccessfully sought in a Dutch court. No. M 19-99, 2009 WL
3335608 at *9 (S.D.N.Y. Oct. 15, 2009). A Dutch appellate court had weighed the
interests of both parties and concluded unambiguously that disclosure was
unwarranted. Id. at *9, *3. Here, there has been no such ruling. And In re
Microsoft Corp. involved a request for the exact same documents, even though the
European Commission had provided a letter to counsel to the § 1782 target stating
that the applicant was seeking to circumvent its rules. 428 F. Supp. 2d 188, 191–
92 (S.D.N.Y. 2006).
13
The Pitt Parties have failed to identify any relevant comity concerns.
II. The Pitt Parties Will Not Be Irreparably Harmed Absent a Stay.
The Pitt Parties’ contention that they will be harmed from the disclosure of
allegedly confidential and proprietary information to Nouvel absent a stay lacks
any factual support whatsoever. Indeed, their only “evidence” of harm are their
own allegations in a complaint from a different case that the Stoli Group, an
affiliate of which owns Nouvel, is an “aggressive competitor spirits business”
trying to take control of Chateau Miraval. (Mot. 4, 14–15.) The Pitt Parties have
failed to provide any evidence of this alleged harm or that they possess any
commercially sensitive documents. As Magistrate Judge Eick noted, the Pitt
Parties’ “conclusory assertion that the documents contain ‘commercial sensitive,
confidential information’” is insufficient. (Ex. 14 at 162 (quoting Nguyen v. Lotus
by Johnny Dung, Inc., 2019 WL 4570032, at *4 (C.D. Cal. Apr. 12, 2019)).)
Nor do the Pitt Parties’ allegations make sense. Nouvel’s § 1782 requests
for use in the Luxembourg Actions concern the validity of the 2013 Share
Transfer. The Pitt Parties make no effort to explain why such materials would be
commercially sensitive. As to the French Action, the Pitt Parties fail to explain
why Pitt, his company Mondo Bongo, or his agent Grant are entitled to have
Chateau Miraval’s commercially sensitive information, whereas Nouvel, Chateau
Miraval’s other indirect 50% owner, is not. In a quintessential instance of saying
14
the quiet part out loud, Pitt acknowledges his true fear—that the information
“would allow Stoli to conduct an indirect audit” of his gross mismanagement of the
enterprise. (Mot. 5.) He is almost right—the documents would actually allow
Nouvel to seek redress in France for Pitt and his allies’ mismanagement.
The Pitt Parties ignore that the District Court entered a protective order
“restricting the § 1782 discovery to be used for the purposes of the Luxembourgish
and French proceedings only”. (Ex. 16 at 189.) Courts have declined to grant
stays when an appropriate protective order is in place. See, e.g., HRC-Hainan
Holding Co., LLC v. Yihan Hu, No. 19-mc-80277, 2020 WL 1274877, at *5 (N.D.
Cal. Mar. 17, 2020); JSC MCC EuroChem v. Chauhan, No. 18-5890, 2018 WL
9650037, at *2 (6th Cir. Sept. 14, 2018). And documents filed in Luxembourg and
France are not publicly available (Exs. 24 ¶ 29; 25 ¶ 49), further limiting any harm.
The Pitt Parties’ argument that a stay is warranted because “the proverbial
bell cannot be unrung” (Mot. 15) is misplaced. “[R]esponding to discovery during
a pending appeal is an insubstantial harm in the context of 1782.” In re Gyptec
S.A., No. 16-cv-20810, 2017 WL 10978838, at *1 (S.D. Fla. Nov. 2, 2017); see
also In re Gushlak, No. 11-mc-0218, 2012 WL 2564466, at *7 (E.D.N.Y. Jan. 30,
2012) (“[T]he compelled production of non-privileged discovery material, standing
alone, does not constitute irreparable injury warranting a stay pending appeal.”).
“The mere fact that information, once disclosed, cannot be ‘undisclosed’ is
15
therefore not enough by itself to warrant a finding of irreparable harm.” HRC-
Hainan, 2020 WL 1274877, at *5. That “is true in most, if not all, Section 1782
cases (not to mention ordinary discovery orders)”. Id. Under the Pitt Parties’
logic, a stay would be a matter of right in any § 1782 appeal, which is not the
standard. See Nken, 556 U.S. at 427 (a stay “is not a matter of right, even if
irreparable injury might otherwise result” (citation omitted)).
The Pitt Parties’ argument that its appeal will become moot absent a stay
also fails. “The test for mootness of an appeal is whether the appellate court can
give the appellant any effective relief in the event that it decides the matter on the
merits in his favor.” In re Burrell, 415 F.3d 994, 998 (9th Cir. 2005) (emphasis
added). A producing party retains a concrete interest sufficient to avoid mootness
on appeal. Even when it is “too late [] to provide a fully satisfactory remedy”,
appellate courts may still “effectuate a partial remedy” by ordering the return or
destruction of produced materials. See Church of Scientology of California v. U.S.,
506 U.S. 9, 12–13 (1992). Courts have applied this principle in § 1782 actions.
See, e.g., Rothe v. Aballí, No. 20-12543, 2021 WL 4429814, at *2 (11th Cir. Sept.
27, 2021) (appeal of § 1782 petition was not moot because “the return of private
documents, like the documents requested by [petitioner], would provide some
meaningful relief” (citing Church of Scientology, 506 U.S. at 12–13)); see also
Mangouras v. Squire Patton Boggs, 980 F.3d 88, 96 (2d Cir. 2020) (“[I]f the
16
discovery was improvidently granted, this Court is positioned to grant meaningful
relief by ordering that the documents be returned or destroyed.”). 2
Even if the Pitt Parties can demonstrate some measure of irreparable harm,
no stay should issue given that they will fail on the merits. See Nat. Res. Def.
Council, Inc. v. Winter, 502 F.3d 859, 862 (9th Cir. 2007) (“[T]he required degree
of irreparable harm increases as the probability of success decreases.”).
The Pitt Parties, citing two unpublished orders, argue that this Court has
recognized that the possibility of an appeal becoming moot constitutes irreparable
harm. (Mot. 8, 14.) But each of those two-page orders simply granted a stay and
referred to precedents without any detailed legal analysis. Neither made a finding
concerning likelihood of success on the merits, and neither stands for the
proposition that where, as here, a § 1782 appellant is almost certain to lose on the
merits, the appellant is entitled to a stay as a matter of right.
The Pitt Parties’ other cases are distinguishable. John Doe Agency v. John
Doe Corp. concerns a Freedom of Information Act request, 488 U.S. 1306 (1989),
so unlike here a protective order limiting disclosure was impossible. See Nat’l
2
The Pitt Parties’ reliance on Bernhardt v. Cnty. of Los Angeles is
misplaced. Bernhardt states that a request for prospective relief becomes moot
“[w]here the activities sought to be enjoined already have occurred, and the
appellate courts cannot undo what has already been done”. Bernhardt, 279 F.3d
862, 871 (9th Cir. 2002). That is not the case here.
17
Archives & Records Admin. v. Favish, 541 U.S. 157, 171 (2004). Becker v. U.S.
stayed the IRS’s seizure of an income-generating asset, not the production of
records. See 451 U.S. 1306, 1310 (1981). Neither situation applies here.
III. Nouvel Will Be Substantially Injured by a Stay.
Although the Pitt Parties acknowledge that “a § 1782 applicant may incur
injury if it does not receive discovery ‘until after expiration of [] deadlines in the
foreign proceeding” (Mot. 15 (citing Nikon Corp. v. GlobalFoundries U.S. Inc.,
2017 WL 4865549, at *3 (N.D. Cal. Oct. 26, 2017))), they misrepresent the state of
the Luxembourg Action. In Luxembourg, the investigation and gathering of
evidence is overseen by the presiding judge, who “may at any time decide that the
investigation phase is complete [and] the time for submission of evidence is over”.
(Mailliet Decl. ¶ 7; Ex. 27 at 423-24, Ex. 28.) Pitt and Mondo Bongo filed the
Luxembourg Action nearly a year ago, and the evidentiary phase has been
proceeding apace. When the presiding judge decides that she has sufficient
evidence to conclude the investigation, she may close the window to submit
evidence and proceed to an oral hearing. If that happens before this appeal is
resolved—and it may happen in the coming months (Mailliet Decl. ¶ 8)—Nouvel
will be unable to submit evidence directly relevant to one of the central issues in
the case (id. at ¶ 9). The Pitt Parties’ arguments to the contrary (Mot. 15) ignore
the nature of Luxembourg civil procedure. (Mailliet Decl. ¶¶ 6−7.)
18
In France, Nouvel is suffering real, continuing harm from the actions of
French parties who are failing to adhere to proper governance at Chateau Miraval
and enabling Pitt to waste Chateau Miraval’s profits and loot it of its most valuable
assets. Chateau Miraval’s directors have already allowed another entity to register
its trademarks for no consideration (Ex. 12 ¶¶ 7-9), and there is no telling what
further damage they may do if Nouvel cannot immediately act to hold them to
account. Nouvel must commence the French Action as quickly as possible to try to
restore proper governance and to mitigate ongoing commercial harm to Chateau
Miraval and, indirectly, itself. See Scrum All., Inc. v. Scrum, Inc., No. 4:20-cv-
227, 2021 WL 720703, at *2 (E.D. Tex. Feb. 24, 2021) (finding “misappropriation
of property and illegal business practices” to constitute substantial injury); Wisdom
Imp. Sales Co. v. Labatt Brewing Co., 339 F.3d 101, 114–15 (2d Cir. 2003)
(“Conduct that unnecessarily frustrates efforts [] to participate in the management
of a company may also constitute irreparable harm.”)
IV. The Public Interest Does Not Favor a Stay.
The public interest weighs against granting a stay. Immediate enforcement
of Nouvel’s subpoenas serves the interests of international comity by furthering the
reciprocal truth-seeking function of domestic and international tribunals, and
further serves the public interest in justice, fair play and full disclosure. See, e.g.,
In re Application of Procter & Gamble Co., 334 F. Supp. 2d 1112, 1118 (E.D. Wis.
19
2004) (“[T]he public interest favors allowing the discovery because doing so
furthers the search for the truth in foreign actions . . .”); In re Application of
Hornbeam Corp., No. 14-mc-424, 2017 WL 2241522, at *2 (S.D.N.Y. May 22,
2017) (denying stay pending appeal, noting denial served “public interests in
justice, fair play, and full disclosure” and “the truth in foreign actions”) (citing In
re Application of Chevron Corp., 709 F. Supp. 2d 283, 310 (S.D.N.Y. 2010)).
The Pitt Parties again focus only on France, thereby conceding that no public
interest exists in delaying discovery intended for use in the Luxembourg Action.
With respect to the French Action, the Pitt Parties’ conclusory public interest
analysis rests on a misreading of In re Gorsoan Ltd.. Gorsoan involved a credible
Fifth Amendment challenge to a discovery order; the Magistrate held “the public
interest in: (i) protecting [] constitutional rights . . . and (ii) preserving judicial
resources . . . outweighs the general interest in comity between the United States
and foreign tribunals.” No. 18-mc-431, 2020 WL 4194822, at *8 (S.D.N.Y. Jul.
21, 2020). The Pitt Parties identify no such issue of constitutional significance.
CONCLUSION
Based on the foregoing, Nouvel respectfully requests this Court DENY the
Pitt Parties’ Emergency Motion to Stay. If, however, this Court chooses to grant a
stay, Nouvel requests that the Court expedite the briefing schedule and argument
for this appeal and prohibit any requests for extensions of time.
20
DATED: August 10, 2022 Respectfully submitted,
s/ Keith R. Hummel
Attorneys for Petitioner-Appellee
21
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing opposition complies with the type-
volume limitation of Federal Rule of Appellate Procedure 27 as it contains 4,958
words and page limitation of Ninth Circuit Rule 27-1 as it does not exceed 20
pages. This opposition complies with the typeface and type style requirements of
Federal Rule of Appellate Procedure 27 as this brief has been accurately formatted
proportionately using Word 14-point Times New Roman typeface.
DATED: August 10, 2022 Respectfully submitted,
/s/ Keith R. Hummel
Attorneys for Petitioner-Appellee

In The United States Court of Appeals For The Ninth Circuit: Attorneys For Petitioner-Appellee Nouvel, LLC

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

In The United States Court of Appeals For The Ninth Circuit: Attorneys For Petitioner-Appellee Nouvel, LLC

Uploaded by

Copyright:

Available Formats

Case: 22-55737, 08/10/2022, ID: 12514571, DktEntry: 8-1, Page 1 of 28

Case No. 22-55737

IN THE UNITED STATES COURT OF APPEALS

MONDO BONGO, LLC, WILLIAM B. PITT, and WARREN GRANT,

Appeal from the United States District Court

APPELLEES’ OPPOSITION TO APPELLANTS’ EMERGENCY MOTION

Attorneys for Petitioner-Appellee Nouvel, LLC

August 10, 2022

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, Appellee Nouvel,

Stoli Group Holding Limited.

TABLE OF AUTHORITIES ................................................................................... iii

RELEVANT BACKGROUND ................................................................................. 3

HISTORY OF THE PROCEEDINGS ....................................................................... 5

LEGAL STANDARD ................................................................................................6

A. The District Court Did Not Abuse Its Discretion in

B. The District Court Did Not Fail To Address Any

II. The Pitt Parties Will Not Be Irreparably Harmed Absent a

III. Nouvel Will Be Substantially Injured by a Stay. ................................18

IV. The Public Interest Does Not Favor a Stay. ........................................19

Advanced Micro Devices, Inc. v. Intel Corp.,

AIS GmbH Aachen Innovative Sols. v. Thoratec LLC,

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

In re Application of Hornbeam Corp.,

HRC-Hainan Holding Co., LLC v. Yihan Hu, No. 19-MC-80277-TSH,

In re Application of Procter & Gamble Co.,

In re Request For Jud. Assistance from Seoul Dist. Crim. Ct.,

Nat’l Archives & Records Admin. v. Favish,

Scrum All., Inc. v. Scrum, Inc.,

Virginian Ry. Co. v. United States,

Wisdom Imp. Sales Co. v. Labatt Brewing Co.,

Nouvel respectfully submits this opposition to the emergency motion of

authorizing discovery under 28 U.S.C. § 1782 and to quash related subpoenas.

Although Pitt’s illegal conduct continued after Jolie sold Nouvel to a

in Pitt’s separate lawsuit—filed in California state court after and apparently in

attacks on it in Luxembourg and to seek legal redress in France for the

Pitt-masterminded attempts to misappropriate Chateau Miraval’s assets.

evidentiary phase of the Luxembourg proceeding is occurring now, and could

permitted to run out the clock on the evidence-gathering phase in Luxembourg,

including giving away its valuable trademarks for no compensation. Moreover,

order the return or destruction of documents if it ultimately grants the appeal.

emergency request for a stay.

complaint challenging Jolie’s lawful sale of Nouvel. Nouvel here provides a

The Luxembourg Action

Mondo Bongo to transfer 10% of the outstanding shares of Quimicum to Nouvel

Quimicum in Luxembourg (the “Luxembourg Action”) in an effort to annul the

“cause”—in civil law, a benefit or goal. (Ex. 1 at 4, 12; Ex. 2 at 20–21.)

As discussed below, Pitt’s objective is to take de jure control over

Quimicum to hide and legitimize his usurpation of corporate authority and

appropriation of the business of Chateau Miraval. In this § 1782 action, Nouvel

seeks documents to defend itself in the Luxembourg Action, including documents

at 31; 4 at 41; 5 at 51, Request Nos. 1–2.)

The Contemplated French Action

Control of Quimicum is critical because it owns and controls Chateau

world-class rosé. Unable legally to control Chateau Miraval through Quimicum

Pitt imposed a shareholder deadlock at Quimicum to prevent Jolie and

Nouvel from accessing information about or supervising Chateau Miraval. (Ex. 6

at 57–59.) Ironically, while accusing the Stoli Group of plotting a “hostile

control of Chateau Miraval. Chateau Miraval’s directors appear to take

agent—Appellant Warren Grant—as a director of Chateau Miraval. (Ex. 8 at 111,

personal fiefdom, pugnaciously refusing all reasonable efforts to resolve the

deadlock at Quimicum and blocking Nouvel’s efforts to share in Chateau Miraval’s