IN RE: Application of DEIANE ABAJOS ONAINDÍA (2026)

REPORT & RECOMMENDATION

Presently before the undersigned, on referral from the Honorable LaShann DeArcy Hall, United States District Judge, is Applicant Deiane Abajos Onaindía's application for an ex parte order pursuant to 28 U.S.C. § 1782 authorizing her to subpoena documents from Marset USA, Inc., JPMorgan Chase Bank, N.A. (“JPMorgan Chase), and Morrison & Foerster LLP for use in a criminal proceeding in Spain. For the reasons explained below, the undersigned respectfully recommends the application be granted as to the proposed subpoena to Marset USA and denied as to the proposed subpoenas to JPMorgan Chase and Morrison & Foerster.

BACKGROUND

Applicant is a Spanish citizen and lawful permanent resident of the United States who has resided in Jersey City, New Jersey. (See Declaration of Deiane Abajos Onaindía (“Abajos Decl.”), Dkt. No. 2 ¶ 4.) Applicant was employed by Marset USA, a Delaware limited liability corporation with an office in Brooklyn, New York.¹ (See id. ¶ 5.) Marset Iluminación, S.A. (“Marset Spain”), a Spanish company that designs and creates modern lighting products, is the sole shareholder of Marset USA. (See Declaration of Boris Brownstein (“Brownstein Decl.”), Dkt. No. 4 ¶ 12.)

On or around May 2025, Applicant issued five wire transfers totaling approximately $2.826 million from a JPMorgan Chase account affiliated with Marset USA to recipient accounts in Indonesia. (See id. ¶ 13). In connection with those transfers, Marset Spain filed in September 2025, with participation from the Ministerio Fiscal, Spain's Office of the Attorney General, a private criminal complaint before Investigating Magistrate Luis Francisco de Jorge Mesas of the Tribunal Central de Instancia, Seccion de Instruccion No. 1 in Madrid, Spain. (See id. ¶ 11.) That proceeding, titled Diligencias Previas / Procedimiento Abreviado No. 72/2025 (the “Spanish Proceeding”), names Applicant as an investigated person, since Marset Spain believes Applicant intentionally issued the five wire transfers to benefit herself or others. (See id. ¶ 12.) Applicant denies wrongdoing and contends she was the victim of a cyber-fraud scheme in which, through communications including WhatsApp video calls, she was coerced into transferring the funds by individuals posing as U.S. and Indian law enforcement authorities, who provided official-looking documents and threatened her with arrest, prosecution, and deportation. (See Abajos Decl. ¶¶ 6, 8–12; Declaration of Carlos Zabala (“Zabala Decl.”), Dkt. No. 3 ¶¶ 12–15.) When she discovered the transfers were fraudulent, Applicant notified Marset USA and filed a report with the FBI's Internet Crime Complaint Center. (See Zabala Decl. ¶ 15.)

The Spanish court issued a summons to Applicant on approximately September 22, 2025. (See id. ¶ 3.) After Applicant appeared in the Spanish Proceeding through Spanish counsel, she was ordered to personally appear at a hearing before the Spanish court on February 24, 2026. (See id. ¶ 18.) Applicant traveled to Spain and attended the hearing where, at Marset Spain's request, and despite the Ministerio Fiscal's position that detention was unwarranted, the Investigating Magistrate ordered Applicant detained pending trial without bail. (See id. ¶¶ 9, 22, 24; Abajos Decl. ¶ 16.) On February 25, 2026, the Ministerio Fiscal and defense counsel appealed that order. (See Zabala Decl. ¶ 9.) The Ministerio Fiscal sought revocation of the detention order and Applicant's provisional release subject to conditions. (See id. ¶ 24.) Spanish defense counsel's appeal sought dismissal for lack of jurisdiction, but that appeal was rejected. (See id. ¶ 25.) The appellate court ultimately revoked Applicant's detention, and she was released subject to terms that include a prohibition on leaving Spain and an obligation to report in person to law enforcement twice each month. (See id. ¶ 23.) Applicant says these terms prevent her from leaving Spain and returning home to the United States while the Spanish Proceeding remains pending. (See id.)

Since the February 24, 2026 hearing, the parties to the Spanish Proceeding have requested that the Spanish court obtain documents and information from, inter alia, Applicant's devices, JPMorgan Chase, and U.S. law enforcement. (See id. ¶¶ 29, 30.) On April 14, 2026, the investigating court denied or limited Spanish defense counsel's requested measures seeking “U.S.-located evidence concerning the [FBI reports], JPMorgan Chase records, transfer tracing, and related forensic and witness evidence.” (Id. ¶ 32.) Applicant's Spanish counsel appealed that decision, and the appellate court reversed in part, authorizing investigatory measures that included “(a) forensic or police analysis of [Applicant]’s mobile phone to assess the WhatsApp communications, calls, and claimed video surveillance; (b) testimony from FBI Special Agent Nicole Palmer; (c) a request for information from the FBI concerning any investigation arising from [Applicant]’s [FBI] complaint; and (d) testimony from Javier Marset and Alex Nadal, Marset's Chief Financial Officer.” (Id.)

On June 23, 2026, Applicant applied for an order from this Court pursuant to 28 U.S.C. § 1782 authorizing discovery located in the U.S. for use in the Spanish Proceeding. (See Ex Parte Application for an Order Authorizing Discovery for Use in a Foreign Proceeding, Dkt. No. 1.) Applicant seeks authorization to issue three subpoenas seeking relevant, nonprivileged evidence to three entities located in the United States: (i) Marset USA, (ii) JPMorgan Chase, (iii) and law firm Morrison & Foerster, counsel to Marset USA in connection with investigation of the five transfers. (See Memorandum of Law in Support of Ex Parte Application (“Mem.”), Dkt. No. 5 p. 2.) The subpoena to Marset USA seeks, inter alia, corporate and business records, payment and fraud controls, the company's incident response and factual allegations, Applicant's statements, the collection and use of evidence from her devices, client, outside-counsel, and vendor materials. (See Proposed Subpoena to Marset USA, Inc., Dkt. No. 4-3.) The subpoena to JPMorgan Chase seeks, inter alia, records concerning the Marset USA account, the five transfers, account authority and controls, fraud review, warnings, holds, release and authentication, call and branch records, and recall or trace efforts. (See Proposed Subpoena to JPMorgan Chase Bank, N.A., Dkt. No. 4-2.) The subpoena to Morrison & Foerster seeks, inter alia, materials Applicant supplied to the firm, communications with Applicant concerning the incident and device access, device-intake and chain-of-custody records, nonprivileged forensic technical materials, responsive extracted data, and records showing the actual transmission or use of those materials. (See Proposed Subpoena to Morrison & Foerster LLP, Dkt. No. 4-4.)

The application was referred to the undersigned on August 7, 2026. (See Dkt. Order dated Aug. 7, 2026.) The undersigned heard argument on the application on September 9, 2026. (See Scheduling Order dated Sep. 2, 2026, Minute Entry dated Sep. 9, 2026.) During argument, counsel could not definitively describe the relationship between Marset USA and Marset Spain, nor the latter's ability to obtain evidence from its U.S. subsidiary. Also, during argument, the undersigned asked Applicant to address whether the application with regard to subpoenas to JPMorgan Chase and Morrison & Foerster would be more appropriate in the Southern District of New York, where, Applicant admits, both entities have a more definitive presence. Counsel reiterated Applicant's argument that this Court should adjudicate the application as to all three entities in this District.

LEGAL STANDARD

A district court may order a person within its jurisdiction 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[.]” 28 U.S.C. § 1782(a). To grant such an application, the district court must be satisfied that three mandatory requirements are met: “(1) the person from whom discovery is sought resides (or is found) in the district of the district court to which the application is made, (2) the discovery is for use in a foreign proceeding before a foreign or international tribunal, and (3) the application is made by a foreign or international tribunal or any interested person.” In Re SBK ART LLC, 168 F.4th 68, 77 (2d Cir. 2026) (citation modified).

If the applicant satisfies these three mandatory requirements, the district court has discretion to grant use of the discovery in the foreign proceeding. See, e.g., Schmitz v. Bernstein Liebhard & Lifshitz, LLP, 376 F.3d 79, 83–84 (2d Cir. 2004). In exercising that discretion, the district court weighs the following four discretionary factors:

“(1) whether ‘the person from whom discovery is sought is a participant in the foreign proceeding,’ in which case ‘the need for § 1782(a) aid generally is not as apparent’; (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’; (3) ‘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’; and (4) whether the request is ‘unduly intrusive or burdensome.’ ”

Kiobel by Samkalden v. Cravath, Swaine & Moore LLP, 895 F.3d 238, 244 (2d Cir. 2018) (quoting Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264–65 (2004)). The district court's exercise of discretion, however, “is not boundless, but must be exercised in light of the twin aims of [§ 1782]: [i] providing efficient means of assistance to participants in international litigation in our federal courts[,] and [ii] encouraging foreign countries by example to provide similar means of assistance to our courts.” Mees v. Buiter, 793 F.3d 291, 298–99 (2d Cir. 2015) (citation modified).

DISCUSSION

The undersigned begins by determining whether each of the three subpoenas meet the mandatory requirements and next evaluates whether any subpoenas that meet those mandatory requirements also satisfy the discretionary factors.

I. Mandatory Requirements

The undersigned finds the proposed subpoena to Marset USA satisfies the three mandatory requirements, but the proposed subpoenas to JPMorgan Chase and Morrison & Foerster do not.

A. “Resides or is Found in” the District

With regard to the first mandatory requirement, the undersigned finds that, on the record before the Court, only Marset USA resides or is found in this District. “[Section] 1782’s resides or is found language extends to the limits of personal jurisdiction consistent with due process.” In re del Valle Ruiz, 939 F.3d 520, 528 (2d Cir. 2019). “The constitutional limits of personal jurisdiction allow for a showing of either general or specific jurisdiction over each respondent.” In re Steinmetz, 20-MC-212, 2022 WL 170851, at *3 (S.D.N.Y. Jan. 19, 2022). A corporate party is only subject to general jurisdiction in at most two locations: (i) the district where it is incorporated, and (ii) the district where it maintains its principal place of business. See Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). Exercise of specific jurisdiction, on the other hand, depends on the party's contacts with the forum that gave rise to the suit. See Bristol-Myers Squibb Co. v. Superior Ct. of Cal., 582 U.S. 255, 262 (2017). Specific jurisdiction requires “an affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State and is therefore subject to the State's regulation.” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).

Marset USA is found or resides in this District because, although it is organized in Delaware, its sole office is in Brooklyn, so it is subject to general jurisdiction here. (See Mem. p. 9). JPMorgan Chase and Morrison & Foerster, however, are not subject to general jurisdiction in this District. JPMorgan Chase is a Delaware corporation that, despite maintaining some offices in this District, has its global headquarters and principal place of business in Manhattan. See, e.g., In re W. Afr. Min. Trading Ltd., 24-MC-114, 2024 WL 3862293, at *2 (S.D.N.Y. Aug. 19, 2024) (granting § 1782 application as to JPMorgan Chase after finding it subject to general jurisdiction in S.D.N.Y. by maintaining its headquarters and/or principal place of business there). Morrison & Foerster is a California limited liability partnership that maintains no offices in this District.² Thus, for the Court to order JPMorgan Chase or Morrison & Foerster to produce discovery in the Spanish Proceeding, both entities must be subject to specific jurisdiction in this District due to their forum contacts. In the context of specific personal jurisdiction over a § 1782 discovery application, the Second Circuit has held:

“[W]here the discovery material sought proximately resulted from the respondent's forum contacts, that would be sufficient to establish specific jurisdiction for ordering discovery. That is, the respondent's having purposefully availed itself of the forum must be the primary or proximate reason that the evidence sought is available at all. On the other hand, where the respondent's contacts are broader and more significant, a petitioner need demonstrate only that the evidence sought would not be available but for the respondent's forum contacts.”

In re del Valle Ruiz, 939 F.3d at 530.

Here, Applicant asserts JPMorgan Chase's “suit-related contacts” are sufficient to subject it to specific jurisdiction in this District because “[i]t maintains branches and regularly conducts banking business here, ․ and the requested discovery arises from its banking relationship with a Brooklyn corporation, the subject account, and the transfers from that account.” (Mem. p. 9.) None of those facts are sufficient. They do not demonstrate that the categories of discovery sought would not be available “but for” JPMorgan Chase's in-forum contacts. In re del Valle Ruiz, 939 F.3d at 530. Applicant does not connect performance of any specific banking services that gave rise to the discovery sought to any of the bank's conduct in this forum. Indeed, given the electronic nature of the transfers and banking records Applicant seeks, those services may have been performed in Manhattan or at any one of JPMorgan Chase's multitudinous offices around the world. See, e.g., In re Novalpina Cap. Partners I GP S.À.R.L., 23-MC-25, 2025 WL 1160854, at *13 (S.D.N.Y. Apr. 21, 2025) (granting motion to quash subpoena issued pursuant to § 1782 when applicant failed to demonstrate meetings in New York had anything to do with underlying facts of foreign proceeding in Luxembourg); In re Lakhtakia, 18-MC-501, 2019 WL 3406659, at *4 (S.D.N.Y. July 29, 2019) (refusing to authorize discovery pursuant to § 1782 after finding nexus between bank's contacts with district and petitioner's request for bank records “attenuated at best” when there was no evidence records were held within district and only connection to district was that one of bank employees worked in a New-York office space). Accordingly, the undersigned finds that the proposed subpoena to JPMorgan Chase cannot be authorized because there is no general or specific jurisdiction in the Eastern District of New York.

The undersigned makes a similar finding with respect to Morrison & Foerster. Applicant presents no facts regarding the firm's contacts with this District and acknowledges the firm's only New York office is located in Manhattan. (See Mem. p. 10.) Nevertheless, she urges the Court to either authorize the Morrison & Foerster subpoena for the sake of efficiency so as “not to delay relief,” or deny the request only as to Morrison & Foerster so Applicant may resubmit her application in the Southern District of New York. (See Mem. pp. 9–10.) Applicant is free to renew her application elsewhere—but it cannot proceed in this District because Morrison & Foerster does not reside, nor is the firm found, in this District. Any “delay” in relief is solely the result of counsel's decision to bring the application in a District in which Morrison & Foerster is not present, as counsel acknowledges in the application. (See Mem. pp. 9–10.) For these reasons, the undersigned recommends the application be denied as to subpoenas to JPMorgan Chase and Morrison & Foerster.

B. “For Use in a Foreign Proceeding” & “Interested Person”

As the undersigned concludes that only the subpoena to Marset USA meets the first mandatory requirement, the undersigned continues its analysis of the remaining mandatory requirements and, if necessary, the discretionary factors only as to that subpoena.

The two remaining mandatory requirements are (i) that the discovery sought be “for use in a foreign proceeding,” and (ii) that the application be made by an “interested person.” See supra p. 5. The “for use” requirement is interpreted broadly and may be satisfied so long as the materials sought are to be used at some stage of a foreign proceeding and are minimally relevant. See, e.g., In re Kingstown Partners Master Ltd., 21-MC-691, 2022 WL 1081333, at *5 (S.D.N.Y. Apr. 8, 2022). “[S]o long as a [§] 1782 applicant has establish[ed] that it will have some means of actually using the evidence in the foreign proceeding, in the absence of authoritative proof that a foreign tribunal would reject the evidence obtained, a district court should not reject a [§] 1782 application” for failure to satisfy the “for use” ground. In re Noguer, 18-MC-498, 2019 WL 1034190, at *2 (S.D.N.Y. Mar. 5, 2019) (citation modified).

The undersigned finds Applicant has cleared this low hurdle as to the Marset USA subpoena. Applicant's Spanish counsel affirms that “documents and testimony lawfully obtained abroad may be submitted through counsel to the Investigating Court,” although “the Spanish court retains authority to rule on relevance, necessity, admissibility, and procedural use under Spanish law.” (Zabala Decl. ¶ 38.) Applicant also meets the “interested person” requirement, as she is named as a party in the Spanish Proceeding. See In re Esses, 101 F.3d 873, 875 (2d Cir. 1996). As such, the undersigned concludes that the request to issue a subpoena to Marset USA meets all three mandatory requirements.

II. Discretionary Factors

Because the undersigned finds that the proposed subpoena to Marset USA meets the mandatory requirements, the undersigned next applies the discretionary factors to determine whether the Court should authorize the proposed subpoena. These factors “are not to be applied mechanically[;] [a] district court should also take into account any other pertinent issues arising from the facts of the particular dispute.” Kiobel, 895 F.3d at 245 (citation modified). Moreover, “[w]hile district courts have broad discretion to grant or deny § 1782 applications, that discretion is not a license to engage in a free-ranging policy analysis of any given application[.]” Fed. Republic of Nigeria v. VR Advisory Servs., Ltd., 27 F.4th 136, 155 (2d Cir. 2022); see also S. Rep. No. 88–1580, reprinted in 1964 U.S.C.C.A.N. at 3783 (explaining that the purpose of § 1782(a) is to provide equitable procedures for the benefit of litigants in international litigation). “The Second Circuit has expressly rejected a ‘foreign discoverability requirement’ when analyzing the [discretionary] factors.” In re Republic of Kazakhstan, 110 F. Supp. 3d 512, 517 (S.D.N.Y. 2015) (quoting Euromepa, S.A. v. R. Esmerian, Inc., 154 F.3d 24, 28 (2d Cir. 1998).

A. Marset USA's Participation in the Spanish Proceeding

The first discretionary factor requires the undersigned to assess whether Marset USA is a participant in the foreign proceeding such that a subpoena from a U.S. court is unnecessary to reach the discovery sought. See, e.g., Fed. Republic of Nigeria, 27 F.4th at 160 n.7. (“The purpose of the first factor is to root out situations in which ‘the need for § 1782(a) aid ․ is not as apparent’ because ‘[a] foreign tribunal has jurisdiction over’ the party from whom discovery is sought ‘and can itself order [that party] to produce evidence.’ ” (quoting Intel, 542 U.S. at 264)).

Here, although Marset USA is not a party to the Spanish Proceeding, the company's sole shareholder, Marset Spain, initiated the foreign proceeding and is subject to the Spanish court's jurisdiction. See supra p. 2. Thus, Marset Spain may have access to the discovery Applicant seeks from Marset USA, and that discovery may be able to enter the Spanish Proceeding through Marset Spain without a subpoena from this Court.

Applicant argues that “even if Marset USA is aligned with its Spanish parent or voluntarily participates in the Spanish investigation, the relevant U.S. bank, corporate, and forensic records are not directly available to the defense through ordinary Spanish process.” (Mem. p. 12.) But this general argument appears to focus more on the materials sought from JPMorgan Chase and Morrison & Foerster and less on the corporate and payment records, internal fraud controls, and facts regarding the company's response to the transfers that are the thrust of the materials sought from Marset USA. (See Proposed Subpoena to Marset USA, Inc., Dkt. No. 4-3; Zabala Decl. ¶¶ 32, 41.)

Nevertheless, the Second Circuit indicated, without conclusively deciding, that it may be appropriate to authorize discovery from a U.S. corporate entity affiliated with a party to foreign proceeding—even if the foreign party might have access to discovery sought. See Fed. Republic of Nigeria, 27 F.4th at 160 n.7. There, in expressing reservation about the district court's decision that the first factor “only nominally favored” authorizing discovery, the Second Circuit noted that the U.S. entity, which was the minority shareholder of the party to the foreign proceeding, had a “distinct legal personality” and would likely be more responsive to discovery requests. Id.

Here, given Marset Spain's sole ownership of Marset USA, Applicant has not made a clear showing as to whether the two entities have distinct legal personalities. (See Brownstein Decl. ¶ 12.) Beyond identifying Marset Spain's ownership of Marset USA, the record says nothing more about their relationship. Without more information, the undersigned cannot conclusively determine that the discovery would in fact be available to the Spanish court without this Court's assistance. And, considering the obligation to weigh the discretionary factors in light of the Court's obligation to “provid[e] efficient means of assistance to participants in international litigation in our federal courts[,]” the undersigned finds this factor should not weigh against Applicant. See supra pp. 5–6 (quoting Mees, 793 F.3d at 298–99). However, given Applicant's failure to persuasively explain why Marset Spain would not already have access to these documents, the undersigned finds this factor weighs only slightly in Applicant's favor.

B. Character of the Spanish Proceeding & Receptivity to U.S. Assistance

The second factor examines “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.” Intel, 542 U.S. at 264. District courts have been instructed to “tread lightly” in this area. In re Promnefstroy, 19-M-99, 2009 WL 3335608, at *7 (S.D.N.Y. Oct. 15, 2009) (citing Euromepa, S.A., 51 F.3d at 1099–1100. “[A]bsent authoritative proof that a foreign tribunal would reject the evidence obtained with the aid of [§] 1782, ․ a district court should not refrain from granting the assistance afforded under the Act[.]” In re Metallgesellschaft AG, 121 F.3d 77, 80 (2d Cir. 1997). Instead, when the district court has no evidence suggesting opposition from the foreign tribunal, the second discretionary factor should count as “neutral or slightly favor[ing]” the petitioner.” In re Promnefstroy, 2009 WL 3335608, at *7.

Here, the Spanish investigating court initially “denied or limited” Applicant's request for complementary investigatory measures seeking “U.S.-located evidence concerning the [FBI] report, JPMorgan Chase records, transfer tracing, and related forensic and witness evidence.” (Zabala Decl. ¶ 32.) Applicant's Spanish counsel appealed that decision, and the appellate court reversed in part, authorizing investigatory measures to seek forensic analysis of Applicant's mobile phone records, testimony from an FBI agent and corresponding FBI records, and testimony from Marset executives. (See id.) Applicant argues that “authorization of these measures confirms that evidence concerning the U.S. law enforcement report, the phone evidence, and Marset's internal knowledge, controls, and post-incident response is material to the Spanish Proceeding.” (See id.)

Both Applicant's phone and the Marset executives are currently in Spain, so the appellate court's authorization of measures to obtain evidence from those sources do not bear on any receptiveness to U.S.-based evidence. As to other categories of U.S.-based evidence Applicant seeks, the undersigned does not find the investigating court's denial of measures seeking to obtain that evidence the kind of “authoritative proof” that would show there is no interest whatsoever in assistance from a U.S. court. In re Promnefstroy, 2009 WL 3335608, at *7; see also, e.g., Schmitz v. Bernstein Liebhard & Lifshitz, LLP., 376 F.3d 79, 84 (2d Cir. 2004) (finding second factor weighed against authorizing discovery when German Ministry of Justice and local German prosecutor explicitly asked the U.S. district court judge to deny the discovery request); In re Microsoft Corp., 428 F. Supp. 2d 188, 194 (S.D.N.Y. 2006) (finding second factor weighed against granting application because of explicit opposition to applicant's discovery request by the European Commission), abrogated on other grounds by In re del Valle Ruiz, 939 F.3d at 533.

Further, and importantly, the decision on appeal does indicate receptiveness to U.S.-based evidence. Although the undersigned cannot fully evaluate the Spanish investigating court's reasoning because Applicant did not include the court's opinion on that issue in the record, the appellate decision reversing in part that decision indicates at least some level of receptivity to such evidence—particularly information from U.S. law enforcement. See supra pp. 3, 13. Applicant seeks similar information from Marset USA. (See Subpoena to Marset USA, Request No. 17) (seeking “[c]ommunications with ․ the Federal Bureau of Investigations, IC3 ․ concerning the Subject Incident[.]”) Taking these facts into account, declining to engage in an extensive review of Spanish law or hypothesize too extensively about the Spanish courts’ decision-making, and considering that it must tread lightly in this area, the undersigned finds this second factor also weighs just so slightly in favor of granting the application.

C. Circumvention of Spanish Procedures

The third discretionary factor suggests that a district court should be more inclined to deny a petitioner's discovery request when it is “an attempt to circumvent foreign proof gathering restrictions.” Intel, 542 U.S. at 265. “[C]ircumvention occurs where the applicant uses a § 1782 application to avoid measures that are intended to restrict certain means of gathering or using evidence.” Fed. Republic of Nigeria, 27 F.4th at 153; see also Mees, 793 F.3d at 303 n.20 (distinguishing between rules of the foreign jurisdiction that “prohibit the acquisition or use of certain materials,” and rules that merely “fail to facilitate investigation of claims”). “ ‘Proof-gathering restrictions’ are best understood as rules akin to privileges that prohibit the acquisition or use of certain materials, rather than as rules that fail to facilitate investigation of claims by empowering parties to require their adversarial and non-party witnesses to provide information.’ ” Fed. Republic of Nigeria, 27 F.4th at 153 (quoting Mees, 793 F.3d at 303 n.20). “District courts may [also] consider how the applicant fared or is faring in the foreign jurisdiction in its attempts to procure the same information it now seeks under § 1782.” In re Promnefstroy, 2009 WL 3335608, at *7 (finding third factor weighed strongly against granting application when applicant's repeated efforts to seek discovery at issue were rebuffed by Dutch courts).

Here, Applicant's Spanish counsel asserts “[b]ased on his experience in Spanish criminal practice, documents and testimony lawfully obtained abroad may be submitted through counsel” to the Spanish court. (Zabala Decl. ¶ 38.) Applicant further asserts that “[t]he only avenue by which the Spanish court itself could reach U.S.-located evidence is international legal assistance, a sovereign rogatory or MLAT [Mutual Legal Assistance Treaty] channel.” (Mem. pp. 11–12.; see also Zabala Decl. ¶¶ 33–39 (describing limitations of discovery in Spanish criminal procedure.)) The Second Circuit has held that a party need not “justify its use of a § 1782 application rather than an MLAT request for discovery in connection with criminal proceedings,” as the MLAT does not constitute a “proof-gathering restriction.” Fed. Republic of Nigeria, 27 F.4th at 157. Moreover, the appellate court's authorization of measures seeking U.S. law enforcement evidence shows Applicant's attempts have not been completely rebuffed. See supra p. 14. Accordingly, the undersigned finds that the application is not an attempt to circumvent a proof-gathering restriction and, thus, this factor weighs in favor of granting the application.

D. Burden on Marset USA

The fourth and final discretionary factor weighs whether the request is “unduly intrusive or burdensome” on the respondent. Intel, 542 U.S. at 265. A district court evaluating a § 1782 discovery request should assess whether the discovery sought is overbroad or unduly burdensome by applying the familiar standards of Federal Rules of Civil Procedure 26 and 45. See, e.g., Mees, 793 F.3d at 302; Gushlak v. Gushlak, 486 F. App'x 215 (2d Cir. 2012). Rule 26 entitles parties to discover “any nonprivileged matter that is relevant to any party's claim or defense,” to the extent the request is “reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). Whether a subpoena imposes an undue burden pursuant to Rule 45 depends on such factors as relevance, the need of the party for the documents, the breadth of the materials sought, the time period, and the particularity with which the documents are described. See, e.g., In re Application of Gorsoan Ltd. & Gazprombank OJSC, 13-MC-397, 2014 WL 7232262, at *5 (S.D.N.Y. Dec. 10, 2014), aff'd sub nom. Gorsoan Ltd. v. Bullock, 652 F. App'x 7, 10 (2d Cir. 2016). “[U]nduly intrusive or burdensome requests may be rejected or trimmed.” Intel, 542 U.S. at 265.

The proposed subpoena to Marset USA comprises of twenty requests that seek, inter alia, documents and communications from May 1, 2025 through the date of production regarding Marset USA's corporate structure, response to the incident, procedures regarding banking and fraud controls, communications with law enforcement and JPMorgan Chase, and materials that contributed to the belief that Applicant misappropriated or personally benefited from the transfers. (See Proposed Subpoena to Marset USA, Dkt. No. 4-3.) Any requests seeking documents or communications with counsel specify they only request nonprivileged material. (See id.) Based on the record presently before the Court, and without prejudice to any subsequent motion by Marset USA to quash the subpoena, the undersigned finds these twenty requests proportionate and relevant to Applicant's defense and, at least on the current record before the Court, does not find them unduly intrusive or burdensome. Accordingly, the undersigned finds this factor weighs in favor of granting the application.

Having found that the proposed subpoena to Marset USA meets all three mandatory requirements, and that all four discretionary factors also weigh at least nominally in Applicant's favor, the undersigned respectfully recommends that the Court authorize the proposed subpoena to Marset USA.

CONCLUSION

For the foregoing reasons, the undersigned respectfully recommends that the Court grant in part and deny in part Applicant's application. The undersigned recommends that the Court authorize the proposed subpoena to Marset USA but not the proposed subpoenas to JPMorgan Chase and Morrison & Foerster, though the denial should be without prejudice to renew those applications in a more appropriate District should Applicant choose to do so.

OBJECTIONS

Any objections to this Report and Recommendation must be filed within 14 days of service of this Report and Recommendation. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Any requests for an extension of time to file objections must be directed to Judge DeArcy Hall. Failure to file objections within this period designating the particular issues to be reviewed waives the right to appeal the district court's order. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2); see also Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010) (“[A] party [forfeits] appellate review of a decision in a magistrate judge's Report and Recommendation if the party fails to file timely objections designating the particular issue.”).

SO ORDERED.

FOOTNOTES

1.   Applicant's papers initially asserted Marset USA is a New York corporation. (See Brownstein Decl. ¶ 19.) But at a subsequent hearing, counsel affirmed Marset USA is in fact a Delaware limited liability corporation.

2.   See Terms / Notices, (updated June 9, 2026), https://www.mofo.com/about/terms-notices (““Morrison Foerster” ․ refers to an international legal practice composed of Morrison & Foerster LLP, a limited liability partnership registered in California, and its affiliates.”); Offices, https://www.mofo.com/offices.

SETH D. EICHENHOLTZ United States Magistrate Judge Eastern District of New York