United States District Court, D. Maryland
IN RE APPLICATION OF SASHA DIGIULIAN, et al. Petitioners, TO TAKE DISCOVERY FROM THE JOHNS HOPKINS HEALTH SYSTEM CORPORATION, Respondent.
Xinis, United States District Judge.
before the Court is Sasha and John Charles DiGiulian's
petition for issuance of a subpoena for documents and
testimony for use in a foreign proceeding. ECF No. 1.
Petitioners are challenging two wills of their deceased
grandmother, Rita Ernesto DiGiulian (“Ms.
DiGiulian”), in the Quebec Superior Court in Canada on
grounds of lack of capacity and undue influence. Id.
at 2. At the time the disputed wills were endorsed, Ms.
DiGiulian was a patient at Respondent The Johns Hopkins
Health System Corporation (“Johns Hopkins”). ECF
No. 1-1 at 2. Petitioners seek evidence related to Ms.
DiGiulian's mental health and competency at the time she
purportedly endorsed the wills, information that is directly
relevant to their allegations of incapacity. Id. at
Petitioners wish to subpoena from Johns Hopkins all medical
records and documents related to Ms. DiGiulian from January
1, 2007 to January 27, 2017. Id. at 3-4. Petitioners
further ask the Court for the authority to subpoena any
“treating health providers revealed by such
records” for depositions. Id. at 3.
September 6, 2019, the Court issued a paperless order
directing Petitioners to submit their proposed subpoena for
the Court's review. ECF No. 2. Petitioners filed their
proposed subpoena on September 10, 2019. ECF No. 3.
Court's authority to determine whether the subpoena shall
issue arises from 28 U.S.C. § 1782(a), which provides
“federal-court assistance in gathering evidence for use
in foreign tribunals.” Intel Corp. v. Advanced
Micro Devices, 542 U.S. 241, 247 (2004). A federal court
may grant such assistance where (1) the person from whom the
discovery is sought resides or is found in the district of
the district court to which application is made, (2) the
discovery is for use in a proceeding before a foreign
tribunal, and (3) the application is made by a foreign or
international tribunal or “any interested
person.” 28 U.S.C. § 1782(a).
on Petitioners' proffered evidence, the Court finds that
Petitioners have met each of these requirements. The
discovery is sought from a non-profit corporation found in
Baltimore, Maryland; the evidence is expected to be used in
proceedings before a Canadian court; and the application is
made by an “interested person, ” namely parties
to the litigation. See Intel, 542 U.S. at 256
(“No doubt litigants are included among, and may be the
most common example of, the ‘interested person[s]'
who may invoke § 1782.”).
have also persuaded this Court that the subpoena is warranted
under the additional discretionary factors identified by the
United States Supreme Court in Intel Corp. v. Advanced
Micro Devices, 542 U.S. at 264-65. These factors guide
the Court in assessing Section 1782's “twin aims of
providing efficient means of assistance to participants in
international litigation in our federal courts and
encouraging foreign countries by example to provide similar
means of assistance to our courts.” Al Fayed v.
United States, 210 F.3d 421, 424 (4th Cir. 2000)
(citation omitted). The factors are: (1) whether “the
person from whom discovery is sought is a participant in the
foreign proceeding;” (2) the receptivity of the foreign
tribunal to U.S. court assistance; (3) whether the request is
an attempt to “circumvent foreign proof-gathering
restrictions;” and (4) whether the documents sought are
“unduly intrusive or burdensome.” Intel,
542 U.S. at 264-65.
on Petitioners' submission, the discretionary factors on
the whole favor issuing the requested subpoena. First, Johns
Hopkins is not a party to the Canadian action and thus not
subject to the jurisdiction of the Quebec Superior Court,
rendering the Court's assistance essential. Second,
nothing in the record before the Court suggests that the
Quebec Superior Court would be unreceptive to the issuance of
the subpoena, so this factor is neutral in the analysis.
Third, the Court is not aware of any restrictions placed on
discovery by the Quebec Superior Court which this subpoena
would circumvent. Fourth, Petitioners' proposed subpoena
appears to be tailored to the issues before the foreign
tribunal and, based on Petitioners' representations, the
requested materials are within the possession, custody and
control of Johns Hopkins. Finally, the Court notes that once
the subpoena is served on Johns Hopkins and any health
providers, each may file a motion to quash the subpoena in
lieu of compliance, which will automatically reopen this
matter. In Re Naranjo, 768 F.3d 332, 338 n.4 (4th
and upon consideration of Sasha and John Charles
DiGiulian's application, it is this 1st day of
October 2019, by the United States District Court for the
District of Maryland, ORDERED that:
1. The Petition filed by Sasha and John Charles DiGiulian
(ECF No. 1) BE and the same hereby IS, GRANTED;
2. Petitioners are authorized, pursuant to 28 U.S.C. §
1782, to serve on The Johns Hopkins Health System Corporation
3. Petitioners shall have 14 days to request the issuance of