ROSENBAUM, Circuit Judge:
Gaston Glock created the Glock 17 handgun for the Austrian army in 1982.
Gaston's
The American litigation started small, when, on March 18, 2013, Helga filed a miscellaneous proceeding under 28 U.S.C. § 1782, seeking to discover evidence from Glock, Inc., Glock Professional, Inc., and Consultinvest, Inc. (collectively, "Glock Entities"), in the United States for use in Gaston and Helga's Austrian divorce proceedings. Ultimately, the Glock Entities did not challenge Helga's right to obtain the items she sought
But that was not the end of the United States litigation. About a year and a half after Helga filed her § 1782 application, she filed a separate RICO
On October 30, 2014, the magistrate judge granted the motion in a paperless order. Apparently later that same day, the Glock Entities filed their response opposing Helga's use of the documents in connection with the RICO Action. Among other arguments, the Glock Entities asserted that, as a matter of law, documents obtained under § 1782 may not be used in domestic litigation, and even if they could, the Protective Order precluded the use of the § 1782 documents in Helga's domestic litigation. They also suggested that modifying the Protective Order would "intrud[e] on the prerogative" of the district judge in the RICO Action to control discovery in that case.
On November 8, 2014, the magistrate judge vacated her earlier paperless order but then entered a written order granting Helga permission to use the documents in the RICO Action. The order found that the Protective Order "did not limit [Helga's] use of the documents produced in this case to the Austrian Proceedings" but instead permitted the court to authorize use in a proceeding without reference to the foreign or domestic nature of the proceeding. The order further "rejected" the Glock Entities' argument that granting her use of the documents would intrude on the RICO Action judge's prerogatives.
The Glock Entities filed objections to the magistrate judge's order pursuant to Rule 72(a), Fed.R.Civ.P. Among other points, they contended that the order was contrary to law because § 1782 prohibits documents obtained for use in foreign proceedings to be used in litigation in the United States.
The district judge sustained the objections of the Glock Entities and concluded that the magistrate judge's determination that Helga could use evidence obtained in a § 1782 proceeding for a separate civil lawsuit in the United States was "contrary to law." In addition, the district court opined with respect to the Protective Order that although it did not expressly exclude use of the documents in civil lawsuits in the United States, it must be construed to prohibit such use since it was entered into in the context of a § 1782 action. Nevertheless, the district court stated, "This order does not preclude Helga Glock from seeking the documents in the [RICO] Action." Helga now appeals the district court's order.
Because Congress has granted broad discretion to district courts to grant an application under § 1782, this Court normally reviews the grant or denial of assistance for an abuse of discretion. United Kingdom v. United States, 238 F.3d 1312, 1319 (11th Cir.2001). But to the extent the district court's decision was
We review an order interpreting a protective order for an abuse of discretion. See FTC v. AbbVie Prods. LLC, 713 F.3d 54, 61 (11th Cir.2013). "A district court abuses its discretion if it applies an incorrect legal standard, applies the law in an unreasonable or incorrect manner, follows improper procedures in making a determination,... makes findings of fact that are clearly erroneous ... misconstrues its proper role, ignores or misunderstands the relevant evidence, [or] bases its decision upon considerations having little factual support." Id. (citations and internal quotation marks omitted).
This case raises two major issues: first, whether § 1782 precludes the use, in civil litigation in the United States, of evidence previously obtained under the statute; and second, if not, whether the Protective Order entered by the § 1782 court prohibits the use, in civil litigation in the United States, of the materials procured under the § 1782 application in this case.
We begin by considering what, if any, limitations § 1782 imposes on the later use, in United States civil litigation, of documents obtained pursuant to § 1782. To address this question, we must start with the statutory language. Owens v. Samkle Auto. Inc., 425 F.3d 1318, 1321 (11th Cir.2005). For if it answers our question, we end our analysis with the statutory language as well. Id.
In relevant part, § 1782 provides,
28 U.S.C. § 1782(a). The plain language of this statute creates a procedure by which a person may obtain discovery in the United States "for use in a proceeding in a foreign or international tribunal." Though it is clear from the statutory language that the law does not also establish a method for procuring discovery for use in a domestic proceeding, we find nothing in the language of § 1782 that purports to limit later uses of evidence that have been properly obtained under § 1782. Had Congress intended to restrict the use of evidence previously obtained under § 1782 to proceedings in foreign or international tribunals, it easily could have expressed that intention in any number of ways, even by simply adding the word "only" or "solely" to the phrase "for use in a proceeding in a foreign or international tribunal." But it did not do that.
On the other hand, neither did Congress include a sentence in the statute providing that once discovery is lawfully received under § 1782, it may be used for other legal purposes, including United States litigation. Instead, the statute is entirely silent on the issue of whether material procured under § 1782 may be used after
This is not surprising because, throughout the history of the law, Congress was not focused on addressing what, if anything, could be done with documents that were previously lawfully obtained under the statute. Rather, "Section 1782 is the product of congressional efforts, over the span of nearly 150 years, to provide federal-court assistance in gathering evidence for use in foreign tribunals." Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 247, 124 S.Ct. 2466, 2473, 159 L.Ed.2d 355 (2004). The current embodiment of the law reflects the policy choice to "provide efficient means of assistance in our federal courts for litigants involved in international litigation and [to] prompt foreign courts to follow our generous example and provide similar assistance to our court systems." In the Matter of the Application of Malev Hungarian Airlines, 964 F.2d 97, 99 (2d Cir.1992) (citing S.Rep. No. 1580, 88th Cong., 2d Sess. (1964), reprinted in 1964 U.S.C.C.A.N. 3782, 3792-94; In re Letter Rogatory from the Justice Court., Dist. of Montreal, Canada, 523 F.2d 562, 564-66 (6th Cir.1975)). Nothing in the statutory language or in the Senate Report accompanying the law suggests that Congress ever specifically contemplated whether documents previously obtained under § 1782 could later be used in civil United States proceedings.
And, apparently, none of our sister circuits have addressed this issue, either. So we consider the analogy of how domestic litigation works. First, though, we pause to distinguish between the concepts of using evidence and admitting evidence in court proceedings: A party may use evidence — whether or not it is admissible in court under the Federal Rules of Evidence — to develop a theory of the case, to prepare a complaint, to lead it to admissible evidence, to help it to settle a case, and to accomplish other aspects of prosecuting or defending a case. That fact, however, does not mean that the court will admit the evidence or even that the evidence is potentially admissible. Indeed, our discovery rules expressly contemplate the use of inadmissible evidence in prosecuting or defending a case. See Fed.R.Civ.P. 26(b)(1) ("Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.").
As a general rule, in United States litigation, to help prosecute or defend their lawsuits, parties may use any evidence they lawfully possess.
Similarly, if a party lawfully possesses evidence that he would not be able to
Nor are we persuaded by the Glock Entities' argument based on the District of Columbia Circuit's decision in In re Letter of Request from Crown Prosecution Service of the United Kingdom, 870 F.2d 686 (D.C.Cir.1989). They characterize that decision as having held that the district court "did not abuse its discretion by not entering a `protective order to guard against improper use of the evidence in auxiliary or unrelated proceedings here or abroad. The district court's order does not permit the Commissioners to do anything but send the evidence to the British prosecutors... and any other use by them would require court permission.'" The Glock Entities' Brief at 20 (quoting In re Letter of Request from Crown Prosecution Serv. of United Kingdom, 870 F.2d 686, 693 n. 11 (D.C.Cir.1989)) (alterations made by the Glock Entities). Critically, the omitted parts of the quotation are citations to the transcript of the district court's order. In other words, in In re Letter the District of Columbia Circuit was construing the district court's specific § 1782 order in that case, not opining generally on the availability, for later use in United States proceedings, of materials procured under § 1782.
The Glock Entities also fire off another argument for why evidence lawfully obtained under § 1782 should not be able later to be used in United States litigation. It does not hit the mark, either.
The Glock Entities contend that the third Intel
We acknowledge that a § 1782 applicant could attempt to abuse the statute to obtain documents outside the discovery procedures set forth in the Federal Rules of Civil Procedure. But it naturally follows from the existence of the third Intel factor that this kind of subterfuge is a valid reason to reject a § 1782 application in the first place. Parties concerned in a particular case that a § 1782 applicant is attempting to use foreign litigation as a ruse for obtaining discovery in the United States without complying with the usual procedures of the Federal Rules of Civil Procedure can and should bring evidence of such chicanery to the § 1782 court's attention.
And even when no evidence of deception exists, nothing prevents a party from seeking to negotiate a protective order precluding the evidence from being used in United States civil litigation, particularly if the party has reason to believe that it risks exposure to United States litigation based on the evidence produced. Should negotiations fail, a party, for good cause, may also ask the § 1782 court to enter a protective order prohibiting use, in United States proceedings, of documents obtained under the statute. See Fed.R.Civ.P. 26(c)(1). The judge can then decide whether, under the particular circumstances of the case, she believes the entry of such an order to be appropriate. Just as courts have substantial experience controlling discovery abuse in domestic litigation, we have no doubt that district courts can similarly root out sham applications under § 1782.
When subsequent challenges arise, the § 1782 court, having entered the § 1782 order and, if applicable, the governing protective order, is in the best position to quickly evaluate allegations of improper use of § 1782 and the meaning of any governing protective order. Nor does the § 1782 court's resolution of these challenges somehow impermissibly infringe on the authority of the district court involved in the succeeding substantive United States civil litigation. As previously explained, allowing "use" of evidence for litigation is not the same thing as "admitting" evidence in litigation. Our system does not require a party to "rediscover" evidence that it has properly obtained, so the substantive United States court's authority is not implicated prior to the filing of the subsequent lawsuit. And once the substantive case has been filed, it is the substantive United States court that makes all decisions regarding the admissibility of evidence, though it may choose to do so, in part, if it wishes, based on the conclusions of the § 1782 court regarding whether a litigant improperly used § 1782 for the purpose of obtaining United States discovery that otherwise would not have been authorized.
But a rule that would categorically hold that documents lawfully obtained under § 1782 can never be used in United States civil litigation lacks a basis in the statutory language and has significant potential to adversely affect the goals and efficiency of United States litigation. For one thing, it would create the specter of requiring a civil version of a Kastigar hearing
Along the same lines, a blanket rule prohibiting the use of evidence obtained under § 1782 would create a perverse incentive for a party responding to a § 1782 order to flood the applicant with evidence in an effort to insulate itself from United States litigation by precluding the requesting party's ability to use any of the evidence obtained in any future United States litigation.
The restrictions on subsequent use of evidence obtained under § 1782 urged here by the Glock Entities are simply not supported by statutory text, legislative history, conventional discovery practice, or policy considerations. In short, we find that § 1782 does not preclude, as a matter of law, the use of evidence procured pursuant to it in subsequent United States civil litigation.
Since § 1782 does not limit use of the documents to foreign proceedings, we must consider whether the Protective Order precluded Helga from using the § 1782 evidence in United States civil litigation. In relevant part, the Protective Order provides,
(emphasis added).
As the district judge acknowledged, the language of the Protective Order does not expressly preclude Helga from using the § 1782 evidence in United States civil litigation. By defining "Proceeding" as any "proceeding to which [Helga] is a party," the Protective Order, on its face, authorizes Helga "to use" the § 1782 evidence in any litigation anywhere in the world, in which she is involved, provided that she first obtains leave of court to do so. Here, she procured the permission of the presiding magistrate judge.
But the district judge reasoned, and the Glock Entities urge on appeal, that § 1782 precludes the use of evidence obtained under it in United States civil litigation, and since the Protective Order was entered into in the context of a § 1782 proceeding, the terms of the Protective Order must necessarily be coextensively limited with the bounds of § 1782. This argument rises or falls with the notion that documents obtained under § 1782 may never be used in domestic civil litigation. But as we have explained, that is not a construction of § 1782 that we find to be supported by the law. So it cannot serve to narrow the plain terms of the Protective Order.
Because the district court's rulings were erroneous as a matter of law, we must reverse the district court's order sustaining the Glock Entities' objections to the magistrate judge's order granting Helga's motion for leave to use § 1782 evidence in the RICO Action. Ultimately, the § 1782 evidence authorized for use in the RICO Action, like the Glock gun,
In re Clerici, 481 F.3d 1324, 1334 (11th Cir. 2007) (quoting Intel Corp., 542 U.S. at 264-65, 124 S.Ct. at 2483).