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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15355
________________________
D.C. Docket No. 1:13-mc-21598-WJZ
TIM FUHR,
Petitioner-Appellee,
versus
CREDIT SUISSE AG,
Respondent-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 2, 2017)
Before JORDAN and JILL PRYOR, Circuit Judges, and COOGLER, * District
Judge.
PER CURIAM:
*
The Honorable L. Scott Coogler, United States District Judge for the Northern District
of Alabama, sitting by designation.
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Seeking evidence to aid in his defense of a German defamation action, Tim
Fuhr applied in the district court under 28 U.S.C. § 1782 for discovery of bank
records in Credit Suisse AG’s possession. The district court granted the
application, authorizing the issuance of a subpoena for the records, and then denied
Credit Suisse’s motion to quash the subpoena. Credit Suisse appealed, arguing that
the district court abused its discretion in granting the § 1782 application, and thus
in enforcing the subpoena, because the court failed to properly (1) consider
whether Fuhr’s application concealed an attempt to circumvent foreign proof-
gathering restrictions or (2) weigh the respective comity interests of Switzerland,
whose privacy laws apply to Credit Suisse’s bank records, and the United States.
After careful consideration and with the benefit of oral argument, we conclude that
the district court’s circumvention and comity analyses both hinged on a clearly
erroneous factual finding as to the identity of the holder of a certain Credit Suisse
bank account. The district court therefore abused its discretion in granting Fuhr’s
§ 1782 application and denying the motion to quash. Accordingly, we vacate and
remand for further proceedings.
I. BACKGROUND
For a number of years leading up to this action, Fuhr searched for assets
allegedly belonging to Dr. Ambrosius Wolfgang Bäuml, the last heir of a wealthy
2
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Jewish family, the Wertheims, to whose estate Fuhr claims heirship. 1 In 2006,
Fuhr’s search led his investigator, Gerda Mangliers, to Renate Sgier, a Credit
Suisse official in Zurich, Switzerland. Mangliers told Sgier that Bäuml owned a
bank account at Credit Suisse and that as Bäuml’s heir Fuhr sought the release of
information relating to the account.2 Sgier initially complied, releasing to
Mangliers some documents relating to an account that Mangliers claimed belonged
to Bäuml. Soon thereafter, Credit Suisse ceased cooperating with Mangliers,
having determined that the account in question was not in fact Bäuml’s. 3 Several
years later, in 2012, Fuhr again requested from Credit Suisse information relating
to the account that Bäuml supposedly had owned. Credit Suisse sent Fuhr a letter
asserting that an in-depth investigation had uncovered no evidence of a banking
relationship between it and Bäuml.
Over the course of his search for Bäuml’s assets, Fuhr wrote a number of
letters to a third party or third parties alleging that Luis Marimón Garnier, a
Spanish national and former Deutsche Bank officer, had wrongfully diverted funds
from a Credit Suisse bank account belonging to Bäuml to a Deutsche Bank account
1
Credit Suisse does not dispute that Fuhr is Bäuml’s legal heir.
2
It is unclear from the record whether one or multiple bank accounts are at issue here.
For the sake of consistency, we refer to a singular “account.”
3
Credit Suisse asserts that Sgier only complied with Mangliers’ request at first because
she initially took Mangliers’ claim that Bäuml owned a Credit Suisse account at face value
without independently verifying it. The crux of the factual dispute in this case is the validity of
that assertion.
3
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in Geneva, Switzerland. In response, Marimón—along with his son and law
firm—initiated a defamation suit against Fuhr in Germany, seeking €500,000 in
damages and to enjoin Fuhr from claiming that Marimón had either held a bank
account for Bäuml’s benefit or transferred money away from such account.
To establish his defense in the defamation suit, Fuhr sought to obtain
documents from Credit Suisse that purportedly demonstrated the truth of his
accusations against Marimón. To this end, he invoked 28 U.S.C. § 1782, which
empowers a district court to order discovery “for use in a proceeding in a foreign
or international tribunal.” 28 U.S.C. § 1782. Fuhr filed an ex parte § 1782
application against Credit Suisse and Deutsche Bank in the Southern District of
Florida for discovery of documents pertaining to a bank account that Bäuml
allegedly owned. A magistrate judge issued a Report & Recommendation
(“R&R”) recommending that Fuhr’s application be denied. Fuhr objected to the
R&R inasmuch as it recommended dismissal of his application as against Credit
Suisse. At the time, Credit Suisse had not yet appeared in the matter. The district
court adopted the R&R as to Fuhr’s claim against Deutsche Bank, but allowed
Fuhr to maintain his § 1782 action against Credit Suisse.
Credit Suisse asserts that it was given no formal notice of the § 1782
proceeding until September 12, 2013, when it was first served with a subpoena.
Fuhr does not dispute this assertion. Shortly after its initial appearance, Credit
4
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Suisse moved to quash the § 1782 subpoena. Adopting a second magistrate
judge’s R&R, the district court denied Credit Suisse’s motion and ordered the bank
to produce all responsive, non-privileged documents to Fuhr within five days. In
so doing, the district court determined that enforcing the subpoena would not
circumvent Swiss banking privacy law or result in penal violations for Credit
Suisse under Swiss law because Bäuml owned the Credit Suisse account at issue,
and Fuhr, as Bäuml’s heir, was entitled under Swiss law to information regarding
the account. Credit Suisse timely filed this appeal and moved the district court for
a stay, which the court denied. Credit Suisse then moved this Court for a stay,
which we granted.
II. STANDARDS OF REVIEW
We review for abuse of discretion a district court’s decisions to quash a
subpoena and to grant an application for assistance under § 1782. In re Hubbard,
803 F.3d 1298, 1307 (11th Cir. 2015); Glock v. Glock, Inc., 797 F.3d 1002, 1005
(11th Cir. 2015). A district court abuses its discretion when its ruling “reflects a
clear error of judgment,” In re Hubbard, 803 F.3d 1298, 1307 (11th Cir. 2015), or
it
applies an incorrect legal standard, follows improper procedures in
making the determination, . . . makes findings of fact that are
clearly erroneous[,] . . . [or] appl[ies] the law in an unreasonable or
incorrect manner. . . . In making these assessments, we review the
district court’s factual determinations for clear error, and its purely
legal determinations de novo.
5
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Sacred Heart Health Sys., Inc. v. Humana Military Healthcare Servs., Inc., 601
F.3d 1159, 1169 (11th Cir. 2010). “The credibility of witnesses and findings of
fact where the evidence supports more than one conclusion are matters generally
reserved for the fact finders and can only be reviewed to determine whether clear
error occurred.” Mich. Abrasive Co. v. Poole, 805 F.2d 1001, 1007 (11th Cir.
1986). “A factual finding is clearly erroneous only if we are left with the definite
and firm conviction that a mistake has been committed.” Harris v. Schonbrun, 773
F.3d 1180, 1182 (11th Cir. 2014) (internal quotation marks omitted). In an action
brought under 28 U.S.C. § 1782, a district court also abuses its discretion if it fails
to give “required respect to . . . the important considerations of comity underlying
§ 1782.” United Kingdom v. United States, 238 F.3d 1312, 1324 (11th Cir. 2001).
III. ANALYSIS
A. We Have Jurisdiction over This Appeal.
“[A] federal court is obligated to inquire into subject matter jurisdiction sua
sponte whenever it may be lacking.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d
405, 410 (11th Cir. 1999). Pursuant to this obligation, we issued a Jurisdictional
Question as to Credit Suisse, and then an order to carry the jurisdictional issue with
the case. Fuhr moved to dismiss the appeal on the ground that it is premature. He
argues that an order denying a motion to quash a subpoena is not “final” within the
meaning of 28 USC § 1291 and that a party thus cannot appeal such an order
6
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without first defying it and risking contempt sanctions. This issue is one of first
impression in this Circuit.4 Although rulings on motions to quash subpoenas
ordinarily are not appealable, we conclude that in proceedings brought under
§ 1782 such rulings resolve the entire case or controversy before the court, and so
are “final” in a jurisdictional sense. Therefore, Credit Suisse’s appeal is not
premature, and we deny the motion to dismiss. 5
Under § 1291, we “have jurisdiction of appeals from all final decisions of
the district courts of the United States . . . except where a direct review may be had
in the Supreme Court.” 28 U.S.C. § 1291. “As a general proposition most orders
granting or denying discovery are not final orders.” In re Int’l Horizons, Inc., 689
F.2d 996, 1000-01 (11th Cir. 1982) (internal quotation marks omitted). Thus,
“[o]rdinarily, discovery orders without a concomitant contempt holding are not
4
Credit Suisse cites Consorcio Ecuatoriano de Telecomunicaciones, S.A. v. JAS
Forwarding (USA), Inc., 747 F.3d 1262 (11th Cir. 2014), and In re Clerici, 481 F.3d 1324 (11th
Cir. 2007), to argue that a denial of a motion to quash a § 1782 subpoena is a final order under
§ 28 U.S.C. § 1291, but neither case expressly considered that jurisdictional issue. “[W]e are not
bound by previous exercises of jurisdiction in cases in which our power to act was not
questioned but was passed sub silentio.” Brown Shoe Co. v. United States, 370 U.S. 294, 307
(1962).
5
Fuhr asserts that the district court’s initial determination that he was entitled to § 1782
relief is the law of the case. The “law of the case” doctrine “is the rule under which the trial
court and appellate courts are bound by any findings of fact or conclusions of law made by the
appellate courts in a prior appeal of the case at issue.” Robinson v. Parrish, 720 F.2d 1548,
1549-50 (11th Cir. 1983) (internal quotation marks omitted). This rule does not apply here
because there was no prior appeal. Further, the district court owes no “obedience or adherence”
to its own prior ruling. Id. at 1550; see id. (rejecting the contention “that a district court must
rigidly adhere to its own rulings in an earlier stage of a case”).
7
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appealable.” Castle v. Sangamo Weston, Inc., 744 F.2d 1464, 1465 (11th Cir.
1984).
[A] litigant seeking to overturn a discovery order has two choices.
Either he can comply with the order and challenge it at the
conclusion of the case or he can refuse to comply with the order
and contest its validity if subsequently cited for contempt for his
refusal to obey.
Rouse Constr. Int’l, Inc. v. Rouse Constr. Corp., 680 F.2d 743, 745 (11th Cir.
1982). As the Fifth Circuit has explained, the rationale behind this requirement is
that allowing “immediate appeal from [such] orders . . . would open the door to
multiple appeals, thereby offending the policy against piecemeal litigation
embodied in the finality rule” set forth in § 1291. Branch v. Phillips Petroleum
Co., 638 F.2d 873, 877 (5th Cir. Unit A Mar. 1981) (internal quotation marks
omitted); see also Catlin v. United States, 324 U.S. 229, 233-34 (1945) (“The
foundation of this policy is not in merely technical conceptions of ‘finality.’ It is
one against piecemeal litigation.”).
A number of our sister circuits have held, however, that orders under § 1782
are immediately appealable.6 As the Ninth Circuit reasoned, “there is an important
6
See In re Naranjo, 768 F.3d 332, 347 (4th Cir. 2014) (“Because the § 1782 order is a
sufficiently final order, we have subject matter jurisdiction to hear an immediate appeal from a
district court’s order granting discovery under that statute.”); In re Republic of Ecuador, 735
F.3d 1179, 1183 (10th Cir. 2013) (“[Section] 1782 orders are considered final and appealable to
this court.” (internal quotation marks omitted)); In re 840 140th Ave. NE, 634 F.3d 557, 566 (9th
Cir. 2011) (“[T]he courts have permitted appeals from a district court's orders under § 1782, even
if the complaining party has not subjected himself or herself to contempt sanctions.”); Heraeus
Kulzer, GmbH v. Biomet, Inc., 633 F.3d 591, 593 (7th Cir. 2011) (“Although orders granting or
8
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difference between an appeal from an order concerning an ongoing domestic . . .
case and an appeal from an order concerning a request under the procedural
mechanism of § 1782.” In re 840 140th Ave. NE, 634 F.3d 557, 565-66 (9th Cir.
2011). Ordinarily, enforcement of a subpoena
is but one step toward the ultimate resolution of the underlying
criminal case; it is not the “final” step taken by the district court in
that criminal case. In a § 1782 appeal, however, the district court’s
subpoena order is the district court’s last, or “final,” order because,
critically, the underlying case in a § 1782 appeal necessarily is
conducted in a foreign tribunal. Once the district court has ruled on
the parties’ motions concerning the evidentiary requests, there is no
further case or controversy before the district court.
Id. at 566. “For that reason,” the Ninth Circuit explained, “the courts have
permitted appeals from a district court’s orders under § 1782, even if the
complaining party has not subjected himself or herself to contempt sanctions.” Id.
Although several of the other circuits addressed the appealability of the grant or
denial of the § 1782 application itself, the issue before us is whether a party may
appeal from a district court’s order denying its motion to quash a § 1782 subpoena.
denying motions to compel discovery normally are nonfinal and therefore appealable only in
extraordinary circumstances, the orders in this case [denying applications for discovery pursuant
to § 1782] are final because there is no pending litigation in the district court.”); Kestrel Coal
Pty. Ltd. v. Joy Global Inc., 362 F.3d 401, 403 (7th Cir. 2004) (“Orders [issued pursuant to
§ 1782] . . . are final and appealable because they dispose of all issues in the proceeding.”);
Bayer AG v. Betachem, Inc., 173 F.3d 188, 189 n.1 (3d Cir. 1999) (“Only the discovery dispute
under 28 U.S.C. § 1782 is occurring in the United States. Therefore, because the underlying
litigation is in [a foreign court], this discovery order is immediately appealable.”); In re
Aldunate, 3 F.3d 54, 57 (2d Cir. 1993) (“We have jurisdiction over this [§ 1782] appeal pursuant
to 28 U.S.C. § 1291.”).
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The Ninth Circuit addressed an analogous situation when it concluded that it
“ha[d] appellate jurisdiction over the district court’s order denying the motion for a
protective order” on a § 1782 subpoena. Id. at 567.
Similarly, the Second Circuit has held that denials of motions to vacate
§ 1782 orders and denials of motions to quash subpoenas issued pursuant to such
orders are immediately appealable. See In re Aldunate, 3 F.3d 54, 55, 57 (2d Cir.
1993) (“The [discovery targets] moved to vacate the district court’s [§ 1782] order
and quash the subpoenas . . . . We have jurisdiction over this appeal pursuant to 28
U.S.C. § 1291.”); In re Letters Rogatory Issued by Dir. of Inspection of Gov’t of
India, 385 F.2d 1017, 1018 (2d Cir. 1967) (holding that an order denying a motion
to vacate a § 1782 order and denying a motion to quash the subpoena was
immediately appealable). Unlike Credit Suisse, which appealed only the district
court’s denial of its motion to quash the subpoena, 7 the Aldunate and Letters
Rogatory respondents had also challenged the underlying orders granting § 1782
discovery. Aldunate, 3 F.3d at 55; Letters Rogatory, 385 F.2d at 1018. That
distinction, however, is immaterial—in either situation, the reason that a § 1782
respondent may “obtain review [without] allowing [it]self to be cited for contempt”
is that the § 1782 proceeding “before the district court . . . stands separate from the
7
We acknowledge that Credit Suisse had not been served in and was unaware of the
§ 1782 proceeding until it was served with the subpoena, which it moved to quash on the basis
that the district court erred in granting the § 1782 application.
10
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main controversy” litigated in a foreign forum. Letters Rogatory, 385 F.2d at
1018.
We find our sister circuits’ reasoning—particularly that of the Ninth Circuit,
which has specifically addressed the appealability of orders denying motions to
prevent the enforcement of § 1782 subpoenas—to be sound and persuasive, and we
follow it here. We therefore conclude we have jurisdiction over this appeal.
B. The District Court Abused Its Discretion in Granting § 1782 Discovery.
Credit Suisse argues that the district court abused its discretion in denying its
motion to quash the subpoena, which the court denied on the ground that granting
Fuhr’s application for discovery under § 1782 was a valid exercise of the court’s
discretion. Credit Suisse contends that the district court abused its discretion in
granting Fuhr’s § 1782 application without adequately analyzing either (1)
whether the discovery application concealed an attempt to circumvent foreign
proof-gathering restrictions or (2) the respective comity interests of Switzerland
and the United States. 8 See Société Nationale Industrielle Aérospatiale v. U.S.
Dist. Court for S. Dist. of Iowa, 482 U.S. 522, 542-44 (1987) (instructing courts to
8
Credit Suisse also argued on appeal that the district court lacked the power to compel
production of the documents that Fuhr sought because the documents were located abroad, and
§ 1782 does not have extraterritorial reach. After briefing was completed, we held in another
case that § 1782 has extraterritorial reach. See Sergeeva v. Tripleton Int’l Ltd., 834 F.3d 1194,
1200 (11th Cir. 2016) (holding that § 1782 reaches “responsive documents and information
located outside the United States” in the “possession, custody, or control of” the compelled
party). Credit Suisse does not argue that Sergeeva is inapplicable here, and we perceive no
reason why Sergeeva’s holding would not apply.
11
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undertake a comity analysis before granting discovery on foreign soil); In re
Clerici, 481 F.3d 1324, 1334 (11th Cir. 2007) (instructing courts to undertake a
circumvention analysis before granting a § 1782 application). Whether the district
court abused its discretion in denying Credit Suisse’s motion to quash the
subpoena thus turns on whether it abused its discretion in granting Fuhr’s § 1782
application.
In this case, the circumvention and comity inquiries, though analytically
distinct, boil down to the same issue because the district court resolved both by
concluding that Swiss law entitles Fuhr to the documents he seeks. The district
court’s conclusion rested on two factual findings: first, that Fuhr is Bäuml’s heir,
and second, that Bäuml owned a bank account at Credit Suisse. The first finding is
unchallenged on appeal. As regards the second, having thoroughly reviewed the
record, we conclude that the district court clearly erred in finding that Bäuml
owned a Credit Suisse account, when it relied on a perceived inconsistency in the
evidence that does not in fact exist. Because that erroneous finding supported the
district court’s grant of Fuhr’s § 1782 application, which in turn supported its
denial of Credit Suisse’s motion to quash, we conclude that the district court
abused its discretion in denying Credit Suisse’s motion to quash.
Section “1782(a) authorizes, but does not require, a federal district court to
provide judicial assistance to . . . interested persons in proceedings abroad.” Intel
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Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 247 (2004) (internal
quotation marks and alterations omitted). In deciding whether to provide this
assistance, a district court may “consider whether the § 1782(a) request conceals an
attempt to circumvent foreign proof-gathering restrictions or other policies of a
foreign country or the United States.” Id. at 264-65; see Clerici, 481 F.3d at 1334
(characterizing this inquiry as a “factor[] to be considered” by the district court “in
exercising the discretion granted under § 1782(a)”).
In addition, district courts must undertake a “particularized analysis of the
respective interests of the foreign nation and the requesting nation” before granting
discovery of evidence located on foreign soil to determine whether the party
seeking discovery must first resort to procedures under the Hague Convention on
the Taking of Evidence Abroad in Civil or Commercial Matters, opened for
signature Mar. 18, 1970, 23 U.S.T. 2555. Société Nationale, 482 U.S. at 542-44.
The district court determined that granting Fuhr’s § 1782 application would
not raise circumvention or comity concerns because Swiss law entitles Fuhr, as
Bäuml’s legal heir, to the documents he sought. The court based this
determination on a finding that Bäuml owned the Credit Suisse account at issue,
citing communications by Credit Suisse employees that seemingly acknowledge
Bäuml’s ownership of a Credit Suisse bank account. These communications
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include the following statement, supposedly made by Credit Suisse’s Europadesk
Manager and relayed to Mangliers secondhand on May 10, 2006:
This is a significant, Jewish property . . . and everything will be
done in our power to deliver this to the rightful heirs and true
beneficial owners. Because of the urgency and immediacy of this
case we are forced to support Mrs. Sgier and Mrs. Mangliers with
this most appropriate investigation. With regard to the release of
bank documents CS-GE22 we must declare that the beneficial
ownership of Dr. Bäuml is more important to us than the banking
secrecy regarding escrow accounts and mandates.
Doc. 29 at 55.9 The communications upon which the district court relied also
include a letter dated May 11, 2006 and addressed to Mangliers, in which Sgier
and Marc Ribas, a Credit Suisse Assistant Vice President, “confirm in writing, that
the bank documentation concerning . . . Mr. Luis Marimón Garnier in connection
with the researches for the location of the assets of Dr. A. Baeuml, have already
been relinquished and handed out to you by the Credit Suisse.” Id. at 88.10
This evidence, taken alone, would support a finding that Bäuml owned a
bank account at Credit Suisse. However, Credit Suisse offers an explanation for
why it represented in 2006 that Bäuml had a Credit Suisse account when, as Credit
9
All references to “Doc. __” refer to the numbered district court docket entries.
10
This excerpt is taken from a translation of the original letter, which was written in
German. Doc. 29 at 87. Mangliers’ notes, dated May 10, 2006, mention this letter:
Renate Sgier . . . . has now confirmed support from her supervisors and can
now confirm in writing the relationship of the accounts of Marimón at [Credit
Suisse] with the assets and the beneficial ownership of Dr. Bäuml. She will
send a letter confirming this tomorrow.
Id. at 55.
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Suisse maintains in this action, in fact he did not. Daniel Klay, a Credit Suisse
attorney, testified by affidavit that Mangliers identified herself to Sgier as the
representative of Bäuml’s heirs, insisted that Bäuml owned a Credit Suisse
account, and requested that Sgier release to her information regarding that account.
Klay testified that Sgier provided the requested information because she took
Mangliers at her word that Bäuml owned the account; Sgier did not independently
verify Mangliers’s claim, and the account documents themselves bore no
indication of Bäuml’s supposed ownership. Klay further testified that after
conducting an investigation, Credit Suisse eventually concluded that no evidence
of Bäuml’s ownership of the account in question existed, at which point it refused
to provide Mangliers any additional information so as to avoid violating Swiss
privacy law.
Klay’s explanation, if credited, would explain why Credit Suisse initially
acknowledged that Bäuml owned a Credit Suisse account and later reversed
course. According to the R&R, which the district court adopted, the court
disregarded Klay’s affidavit on the sole basis that it was inconsistent with a letter
that he and another Credit Suisse employee wrote to Fuhr in 2012. In that letter,
Klay stated, “After the thorough internal investigations we may confirm that we
have not found any banking relationship whatsoever with [the] late Dr. Bäuml . . . .
[N]o banking relationship existed between Dr. Bäuml and [Credit Suisse] . . . .”
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Doc. 43-1 at 34. We see no inconsistency between Klay’s affidavit and his letter.
To the contrary, both state that Credit Suisse’s internal investigation turned up no
evidence of any banking relationship between it and Bäuml.
Although we “will not ordinarily review the factfinder’s determination of
credibility,” Crystal Entm’t & Filmworks, Inc. v. Jurado, 643 F.3d 1313, 1320
(11th Cir. 2011), we may do so where, as here, “we are left with the definite and
firm conviction that a mistake has been committed.” Harris, 773 F.3d at 1182
(internal quotation marks omitted). The district court’s erroneous perception of
inconsistency between Klay’s affidavit and his letter led the court to construe
Credit Suisse’s initial compliance with Fuhr’s request for information as evidence
that Bäuml owned a Credit Suisse bank account, without considering Credit
Suisse’s explanation of its behavior.11 Thus, the district court’s finding that Bäuml
11
Neither Fuhr nor the district court has identified any additional evidence supporting a
finding that Bäuml owned a Credit Suisse bank account. Fuhr submitted Mangliers’ notes
recounting an April 3, 2006 meeting between herself and Marimón, during which Marimón
called an employee at Deutsche Bank SAE Barcelona’s legal department, who gave
us information about three accounts of the deceased Dr. Bäuml with Deutsche
Bank, which in 1999 (that is nine years after the death of Dr. Bäuml) were
closed. (Apparent diversion or fraud of someone else?)
Luis admits that Maria Wertheim and her nephew and heir Dr. Bäuml
were his customers/clients. He now promises to help uncover all of the assets,
which were transferred at that time by Maria Wertheim to Dr. Bäuml and asks
[Mangliers] to keep him constantly informed of all events from now on.
Doc. 29 at 51-52. At most, these notes could reasonably support only a finding that Bäuml
owned bank accounts at Deutsche Bank, not the further inference that Bäuml owned a Credit
Suisse account.
Fuhr also supplied two declarations of his own containing bald assertions that Bäuml
owned a Credit Suisse account. Conclusory statements made in a plaintiff’s affidavit do not,
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owned a Credit Suisse account—which was necessary to its conclusion that
enforcing the § 1782 subpoena would not implicate circumvention or comity
concerns—rested on clear error. 12 As such, the district court abused its discretion
in granting Fuhr’s § 1782 application and, later, denying Credit Suisse’s motion to
quash the subpoena. Sacred Heart, 601 F.3d at 1169.
Having concluded that the district court abused its discretion in denying
Credit Suisse’s motion to quash, we now consider whether we may affirm its
judgment on alternate grounds. “In reviewing an exercise of discretion under the
abuse of discretion standard, it is important to examine the premises upon which
that discretion was exercised.” Collins v. Seaboard Coastline R.R. Co., 681 F.2d
1333, 1335 (11th Cir. 1982). As we have recognized:
taken alone, constitute substantial evidence. See Wilkins v. Commercial Inv. Tr. Corp., 153 F.3d
1273, 1277 (11th Cir. 1998) (“There is no substantial evidence to support such a finding . . . only
conclusory statements by the plaintiffs in their affidavits. This mere scintilla of evidence is not
enough.”); Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) (“This court has
consistently held that conclusory allegations without specific supporting facts have no probative
value.”).
12
The district court also determined that even if Fuhr were not entitled to confidential
account information under Swiss law, Credit Suisse waived its privacy concerns relating to the
information when it partially responded to Fuhr’s requests for information. But under Swiss law,
the bank secrecy privilege belongs to the account holder, not the bank. See Trade Dev. Bank v.
Cont’l Ins. Co., 469 F.2d 35, 41 n.3 (2d Cir. 1972) (“Since the Swiss bank secrecy law was
enacted primarily to protect the right of privacy of clients, the client is the master of the secret . .
. . With the client’s consent the bank may of course reveal the client’s identity without violating
[Swiss law].” (internal quotation marks omitted)); SEC v. Banca Della Svizzera Italiana, 92
F.R.D. 111, 118 (S.D.N.Y. 1981) (“[T]he secrecy privilege . . . is one belonging to the bank
customers and may be waived by them.”). Accordingly, Credit Suisse could not unilaterally
have waived the privilege through its initial disclosures to Fuhr.
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A discretionary decision that falls within permitted bounds, but is
based on false premises, raises the question on review as to whether
the trial court would have come to the same conclusion using
proper premises. That it could have does not satisfy the inquiry as
to whether it would have reached the same result.
Id. Therefore, even if we believed that the district court could have denied the
motion to quash the subpoena based on a proper view of the record, to affirm “a
discretionary decision that is based on an improper view of the facts or the law” on
alternative grounds would usurp “discretion that rightfully belongs to the trial
court.” Id. We therefore vacate the district court’s order and remand for further
proceedings consistent with this opinion.
We emphasize that our decision is narrow. “Because Congress has given the
district courts such broad discretion in granting judicial assistance to foreign
countries,” we will affirm the district court’s decision to either enforce or quash the
subpoena based on “extremely limited and highly deferential” review, Clerici, 481
F.3d at 1331 (internal quotation marks omitted), “so long as its decision does not
amount to a clear error of judgment.” Aldana v. Del Monte Fresh Produce N.A.,
Inc., 578 F.3d 1283, 1288 (11th Cir. 2009). The district court erred in perceiving
inconsistency between Klay’s affidavit and his letter. On remand, we do not
dictate how the district court must exercise its discretion in enforcing or quashing
the § 1782 subpoena. In making that determination, however, the district court
must either resolve the factual dispute over whether Credit Suisse had an account
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Case: 15-15355 Date Filed: 05/02/2017 Page: 19 of 19
belonging to Bäuml or else explain why enforcing the subpoena would be
appropriate even if Bäuml did not own the account in question.
V.
For the foregoing reasons, we vacate the district court’s order and remand
for further proceedings consistent with this opinion.
VACATED AND REMANDED.
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