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In re Application of Coalition To Protect Clifton Bay

United States District Court, S.D. New York

October 28, 2014

IN RE APPLICATION OF THE COALITION TO PROTECT CLIFTON BAY AND LOUIS BACON FOR AN ORDER PURSUANT TO 28 U.S.C. § 1782 TO CONDUCT DISCOVERY FOR USE IN FOREIGN PROCEEDINGS.

Orin Snyder, Avi Weitzman, Mary Beth Maloney, Ilissa Samplin, GIBSON, DUNN & CRUTCHER LLP, New York, NY, For petitioners the Coalition To Protect Clifton Bay and Louis Bacon.

Steven David Feldman, Sharon Anne O'Shaughnessy, HERRICK, FEINSTEIN LLP, New York, NY, For respondent Stephen Feralio.

Marc E. Kasowitz, Aaron H. Marks, Kenneth R. David, KASOWITZ, BENSON, TORRES & FRIEDMAN LLP, New York, NY, For third-party intervenors Peter Nygård, Nygård International Partnership, and Nygård Inc.

OPINION AND ORDER

DENISE COTE, District Judge.

On August 13, 2014, the Coalition To Protect Clifton Bay (commonly referred to as "Save the Bays") and one of its directors, Louis Bacon ("Bacon") (collectively "petitioners") applied for an order pursuant to 28 U.S.C. § 1782 to conduct discovery for use in foreign proceedings. Specifically, petitioners seek to obtain from respondent Stephen Feralio ("Feralio") material to be used in seven Bahamian proceedings. Two of those are judicial review proceedings[1] brought by Save the Bays that name various respondents, including Peter Nygård ("Nygård"). The other five are civil proceedings brought by Bacon against various individuals associated with Nygård. On September 18, 2014, Nygård along with two of his companies - Nygård International Partnership ("Nygård International") and Nygård Inc. (collectively "Nygård companies, " and collectively with Nygård "Nygård parties") - moved to intervene in opposition to the § 1782 petition. For the reasons discussed below, the petition is granted.

BACKGROUND

Since 1986, Nygård has owned a parcel of land in the Bahamas known as "Nygård Cay." Since 1993, Bacon has owned a parcel of land in the Bahamas known as "Point House." Nygård Cay and Point House neighbor one another.

At base, the two judicial review proceedings brought by Save the Bays challenge the Bahamian government's alleged lack of oversight over Nygård's expansions and proposed expansions of Nygård Cay. The five civil proceedings brought by Bacon principally allege defamation on the part of eleven parties who Bacon claims operate as proxies for Nygård in effecting a smear campaign against Bacon.

During various periods since May 2011, Feralio worked as a videographer for Nygård, taping over one thousand hours of footage, which Feralio still possesses. Feralio filmed Nygård's daily life, both personal and professional, including meetings between Nygård and Bahamian officials. He also allegedly aided in the production of anti-Bacon videos.

Feralio had three contractual agreements with the Nygård companies. These agreements appear to include ownership and confidentiality provisions regarding Feralio's work, as well as forum selection clauses designating California state court as the situs for litigating disputes. Although Feralio has now agreed to aid petitioners in prosecuting their Bahamian actions, he is reluctant - in part because of these contractual agreements - to provide discovery in the absence of judicial intervention.[2]

Petitioners seek court authorization both to subpoena from Feralio video recordings and documentary evidence such as handwritten notes and email correspondence, and to depose Feralio about his personal knowledge relevant to the Bahamian proceedings. Petitioners filed their application on notice to Feralio, who agreed to accept service - and can currently be found - in the Southern District of New York.

Petitioners anticipated that, with respect to the requested discovery, third-party rights might be asserted not only by the parties named in the Bahamian proceedings, which include Nygård, but also by the Nygård companies. Petitioners were right The Nygård parties seek an order (i) granting their motion to intervene; (ii) denying the § 1782 petition; and (iii) quashing the subpoena sought by petitioners.[3]

At a conference on September 11, counsel for petitioners, Feralio, and the Nygård parties were heard. Since that conference Feralio has been reviewing his video records and supplying to the Nygård parties on a weekly basis records that he believes are responsive to the subpoenas. During an on-therecord conference call with the same parties on October 23, the Court ordered Feralio to complete his production by November 21, - at the very latest.

The Nygård parties' motion to intervene in opposition to the § 1782 petition was filed on September 18. On September 24 petitioners served a supplemental memorandum supporting the petition and responding to the motion to ...


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