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In re Application of Kegel

United States District Court, D. North Dakota, Southwestern Division

December 15, 2014

In Re: Application of Adam Kegel, Petitioner for an Order to Conduct Discovery for Use in a Foreign Proceeding Against National Bank of Canada, Defendant, pending in Superior Court Canada Province of Quebec, District of Montreal

Page 1055

ORDER DENYING MOTION TO SUPPLEMENT ORDER GRANTING APPLICATION PURSUANT TO 28 U.S.C. § 1782(a)

Charles S. Miller, Jr., United States Magistrate Judge.

Before the court is a motion requesting that the court supplement a prior order it issued pursuant to 28 U.S.C. § 1782(a), which facilitated applicant Kegel's having obtained deposition testimony and documentary evidence from North Dakota resident Joseph Kostelecky for purposes of a legal action in Quebec, Canada. The motion has been referred to the undersigned for decision. For the reasons stated below, the motion will be denied.

I. BACKGROUND

On May 28, 2013, Kegel made application to this court pursuant to 28 U.S.C. § 1782(a) to obtain evidence from Joseph Kostelecky, a North Dakota resident, in the form of deposition testimony and documents in connection with a Canadian class action proceeding entitled Kegel v. National Bank of Canada that was pending in the Superior Court of the Canadian Province of Quebec, District of Montreal. (Doc. No. 1).

On May 29, 2013, the court issued an order granting Kegel's application and authorizing his counsel to serve a subpoena upon Kostelecky pursuant to Fed.R.Civ.P. 45 to obtain the deposition testimony and documents sought by the application. (Doc. No. 3). Apparently, the evidence was obtained from Kostelecky to Kegel's satisfaction.

On December 5, 2014, Kegel filed the present motion seeking a " supplemental order" whereby the court would in effect declare nunc pro tunc that there was nothing in its prior order or the laws or rules governing its issuance that would prohibit the evidence obtained from Mr. Kostelecky from being used in other legal proceedings in Canada. (Doc. No. 5).

More specifically, the moving papers state that Kegel's Canadian counsel have now determined that the Kostelecky evidence is relevant to another action being brought against the National Bank of Canada entitled Goldsmith v. National Bank of Canada, Court File No. CV-13-474-486-00CP. The moving papers state the Goldsmith action is pending before a court in Ontario, Canada, and describe it as being a parallel action to the Kegel's Quebec case. In addition, the moving papers indicate in a footnote that the Kostelecky evidence may also be relevant to other pending litigation in Canada against the National Bank of Canada's subsidiary, National Bank Financial, Inc., and other parties.[1] (Id.).

Page 1056

Kegel requests in his moving papers that the court order as follows:

(1) The court's Order Granting Application Pursuant to 28 U.S.C. § 1782 dated May 29, 2013 (the " Order" ), does not limit the use of the transcript of Joseph A. Kostelecky's deposition or other evidence obtained from Mr. Kostelecky to the foreign proceeding underlying the Application, Adam Kegel v. National Bank of Canada in the Quebec Superior Court in Montreal, Quebec, Canada (the " Quebec Case" ), or any other particular matter or proceeding.
(2) The Order was not intended by the court to limit the use of evidence obtained from Mr. Kostelecky to use in the Quebec Case, nor to reflect any constraint on the use of such evidence under the United State Code, Federal Rules of Civil Procedure, Federal Rules of Evidence, or the Local Rules and Standing Orders of the court. Rather, when evidence obtained from Mr. Kostelecky and the transcript of his deposition may be used in any particular matter or proceeding is subject to the courts where such matters or proceedings are pending and irrespective of the procedural means by which such evidence was discovered under American law.

(Doc. No. 5-1).

II. DISCUSSION

A. Governing law

" 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, 159 L.Ed.2d 355 (2004) (" Intel ...


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