Helga M. Glock v. Glock, Inc. , 797 F.3d 1002 ( 2015 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-15701
________________________
D.C. Docket No. 1:13-cv-02598-CAP-LTW
HELGA M. GLOCK,
Plaintiff-Appellant,
versus
GLOCK, INC.,
GLOCK PROFESSIONAL, INC.,
CONSULTINVEST, INC.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(August 17, 2015)
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Before ED CARNES, Chief Judge, ROSENBAUM, Circuit Judge, and SMITH, *
District Judge.
ROSENBAUM, Circuit Judge:
Gaston Glock created the Glock 17 handgun for the Austrian army in 1982.1
Four years later, Glock’s guns arrived in the United States. 2
Gaston’s3 divorce followed a similar course. In 2011, Gaston and his ex-
wife Helga began their divorce proceedings in Austria. But those proceedings
came to the United States even faster than Glock’s handguns. This case involves
what happened once they arrived.
I.
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
*
Honorable C. Lynwood Smith, Jr., United States District Judge for the Northern District
of Alabama, sitting by designation.
1
Paul M. Barrett, Glock, the Rise of America’s Gun 9-13 (2013). The gun was unique
among firearms at that time. Built in large part from plastic, the gun was lighter and easier to
fire than other handguns on the market. Id. It also contained fewer parts and could hold
seventeen bullets in its magazine, in comparison to significantly fewer bullets that some other
handguns could carry. Id. The Glock gun also differed from other guns on the market in that it
lacked a traditional safety. Id. at 31.
2
Id. at 50. Within four years of their arrival in the United States, Glock firearms worked
their way into American pop culture in Die Hard 2, when Bruce Willis’s character John
McClane made the remark, “That punk pulled a Glock 7 [sic] on me. You know what that is?
It’s a porcelain gun made in Germany. Doesn’t show up on your airport X-ray machines, here,
and it cost more than you make in a month.” http://www.imdb.com/title/tt0099423/quotes (last
visited Aug. 15, 2015). Ironically, the statement was factually inaccurate in just about every
way.
3
Because Gaston Glock, Helga Glock, and several Glock corporate entities are involved
in this case, this opinion refers to Gaston and Helga Glock by their first names to avoid
confusion.
2
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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 4 and instead entered into a protective order that
limited Helga’s use of any materials that the Glock Entities marked “confidential”
to proceedings “to which [Helga] is a party” (the “Protective Order”).
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 5 lawsuit, in
the United States, against Gaston and the Glock Entities (“the RICO Action”).
Helga then returned to the § 1782 court on October 13, 2014, to seek authorization
to allow her to disclose the documents she obtained in that litigation to her RICO
attorney, for potential use in the RICO Action.
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
4
When Helga initially served the authorized subpoenas on the Glock Entities, they
objected. In response, Helga filed a motion to compel. Originally, the Glock Entities opposed
the motion because, among other reasons, they believed that Helga could not use in the Austrian
proceedings the discovery she sought since the Austrian proceedings had reached Austria’s
highest court, which would not accept or review new evidence. After the Glock Entities filed
their response, though, the Austrian court reinstated Helga’s proceedings. As a result, the Glock
Entities agreed to produce some documents and began negotiating a protective order with Glock.
They also asked the court to refrain from ruling on the motion to compel, but, after a hearing, the
district court granted the motion to compel. The court also required the parties to confer and
present an agreed protective order to the court. The parties filed a joint protective order that the
court adopted on November 18, 2013.
5
A RICO lawsuit is an action filed under the Racketeer Influenced and Corrupt
Organizations Act.
3
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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.
4
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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.
II.
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
based on an interpretation of the § 1782 statute, our review is de novo. See
Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA),
Inc., 747 F.3d 1262, 1268 (11th Cir. 2014).
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
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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).
III.
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.
A.
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,
The district court of the district in which a person resides
or is found may order him to give his testimony or
statement or to produce a document or other thing for use
in a proceeding in a foreign or international tribunal . . . .
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The order may prescribe the practice and procedure,
which may be in whole or part the practice and procedure
of the foreign country or the international tribunal, for
taking the testimony or statement or producing the
document or other thing. To the extent that the order
does not prescribe otherwise, the testimony or statement
shall be taken, and the document or other thing produced,
in accordance with the Federal Rules of Civil Procedure.
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 it is lawfully obtained and used for the purpose for which it was obtained.
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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
(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
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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. 6 If, for
example, a plaintiff obtains documents in discovery from a defendant in one case,
nothing precludes her from using that evidence in a wholly separate lawsuit against
the same defendant or a different party, even though she would not have had those
documents to use in the second case had she not lawfully received them as
discovery in the first case. The law does not require her to rediscover the
documents in the second case. Nor must she apply to the court in either lawsuit
6
Of course, evidence subject to a protective order of a court, a confidentiality agreement,
or otherwise legally protected may not be used in litigation that the order or agreement does not
authorize.
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before being able to, say, draft a complaint in the second case based on information
contained in the documents discovered in the first case. This is so even though no
rule or law expressly authorizes a party to use, in furtherance of litigation, evidence
that it lawfully possesses, whether as a result of earlier litigation or other
circumstances.
Similarly, if a party lawfully possesses evidence that he would not be able to
procure through discovery because, for example, the opposing party no longer had
the records in its possession, nothing prevents him from using that evidence to
further his lawsuit. And that makes sense. As the Federal Rules of Civil
Procedure suggest, goals of our system of civil litigation include “secur[ing] the
just, speedy, and inexpensive determination” of the proceeding. See Fed. R. Civ.
P. 1. Allowing parties to use, for purposes of litigation, documents they have
lawfully obtained, regardless of whether they could have obtained them through
discovery in the case in which they use them, furthers these goals. We see no
reason why a different rule should apply to the use, in United States litigation, of
documents that were previously lawfully obtained under § 1782.
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
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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 7 factor dictates against the
conclusion we reach today. In Intel, the Supreme Court explained that once a party
satisfies § 1782’s statutory requirements to obtain discovery, the district court has
the authority to grant a § 1782 application, but whether then to do so falls within
the district court’s discretion. See id., 542 U.S. at 264, 124 S. Ct. at 2482-83. To
7
Intel Corp., 542 U.S. 241, 124 S. Ct. 2466.
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guide the district court’s exercise of its discretion, the Supreme Court set forth four
factors for consideration. See id. at 264-65, 124 S. Ct. at 2483. The third Intel
factor8 suggests evaluating whether the § 1782 application “conceals an attempt to
circumvent foreign proof-gathering restrictions or other policies of a foreign
country or the United States.” Id. at 264-65, 124 S. Ct. at 2483. According to the
Glock Entities, construing § 1782 in a way that does not prohibit later use, in
United States proceedings, of evidence obtained under the statute would allow
parties to circumvent domestic discovery rules, so we should reject such a
construction.
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
8
The other three Intel factors include the following:
(1) Whether “the person from whom discovery is sought is a
participant in the foreign proceeding,” because “the need for §
1782(a) aid generally is not as apparent as it ordinarily is when
evidence is sought from a nonparticipant”; (2) “the nature of the
foreign tribunal, the character of the proceedings underway abroad,
and the receptivity of the foreign government or the court or
agency abroad to U.S. federal-court judicial assistance”; . . . and
(4) whether the request is otherwise “unduly intrusive or
burdensome.”
In re Clerici, 481 F.3d at 1334 (quoting Intel Corp., 542 U.S. at 264-65, 124 S. Ct. at 2483).
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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
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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 hearing9 every time that civil litigation in the
United States occurred after evidence was produced under § 1782. In other words,
9
A Kastigar hearing is a type of hearing held in criminal cases. It is named for Kastigar
v. United States, 406 U.S. 441, 92 S. Ct. 1653 (1972). In a Kastigar hearing, the United States
must demonstrate that none of the evidence it used to obtain an indictment or that it plans to use
at trial derived from evidence procured from a defendant pursuant to the terms of an immunity
agreement, to ensure that the defendant’s Fifth Amendment privilege against self-incrimination
is not violated. See United States v. Schwartz, 541 F.3d 1331, 1357 (11th Cir. 2008).
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the party alleged to have used the evidence obtained under § 1782 would have to
prove that none of its evidence could be traced back to the § 1782 evidence.
Courts are busy enough without having to engage in such undertakings on a regular
basis.
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.10
10
In a single footnote in their brief, the Glock Entities suggest that Helga, in fact,
obtained evidence under § 1782 with the intention all along of using it in the United States RICO
litigation. In particular, they assert, “The fact that [Helga] filed a 354 page complaint in the
RICO Action, which was not drafted overnight, suggests that she long ago made the decision to
file an action against the U.S. Glock Entities in the United States.” First, this passing reference
is not sufficient to preserve the Glock Entities’ argument. See Hamilton v. Southland Christian
Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012). Second, even if the issue were not waived, the
mere fact that Helga’s RICO complaint was 354 pages, in and of itself, does not show that Helga
obtained the evidence under § 1782 for the purpose of using it in a later RICO complaint.
Indeed, a year and a half went by between Helga’s filing of her § 1782 application and the filing
of the RICO complaint. While drafting a 354-page complaint certainly takes time (though
some, including Blaise Pascal, might say that drafting a shorter complaint requires more time,
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B.
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,
Disclosure of “Confidential” information and
embodiments thereof . . . shall be restricted solely to the
following persons who agree to be bound by the terms of
this Order, unless additional persons are stipulated by
counsel or authorized by the Court . . . and solely for use
in a proceeding to which Applicant is a party (a
“Proceeding”), provided, however, that if Applicant
desires to use such documents in connection with
Proceedings other than the proceedings currently pending
in Austria (i.e., the proceedings for spousal support
[3C135/11d, before the District Court Villach]; division
of assets [40FAM 231/12s, before the District Court
Villach]; changes to trust documents [22Cg 213/11 g,
before the Klagenfurt Regional Court], and the
revocation of share transfer [20Cg 180/11 I, before the
Klagenfurt Regional Court], collectively referred to
herein as the “Austrian Proceedings”), she shall first
request and obtain leave of the Court to do so . . . .
(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
see Provincial Letters: Letter XVI (Dec. 4, 1656)), it does not necessarily require eighteen
months.
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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.
IV.
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
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evidence in the RICO Action. Ultimately, the § 1782 evidence authorized for use
in the RICO Action, like the Glock gun,11 is here to stay.
REVERSED.
11
According to the Glock website, “approximately 65% of police departments” in the
United States use Glock firearms. https://us.glock.com/products/sector/law-enforcement (last
visited Aug. 15, 2015).
18