[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-12922

Non-Argument Calendar

____________________

In re: EDUARDO GONZALEZ, 

Pursuant to 28 U.S.C. 1782 For Judicial Assistance in 

Obtaining Evidence for Use in Foreign International Proceedings, 

Petitioner-Appellee,

versus

VERFRUCO FOODS, INC., 

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2 Opinion of the Court 21-12922

Respondent-Appellant,

VICTOR SEBASTIAN MAURICIO, et al.,

Respondents.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:20-mc-24628-DPG

____________________

Before ROSENBAUM, GRANT, and EDMONDSON, Circuit Judges.

PER CURIAM:

This appeal stems from an application for judicial assistance 

under 28 U.S.C. § 1782. Eduardo Gonzalez filed ex parte a section 

1782 application seeking discovery from Verfruco Foods, Inc. 

(“Verfruco US”) for use in anticipated litigation in Mexico. The 

district court granted Gonzalez’s application and ordered the issuance of Gonzalez’s proposed subpoenas. The district court later 

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denied Verfruco US’s motion to vacate and to quash the subpoenas. No reversible error has been shown; we affirm.*

I. 

Gonzalez is a Mexican engineer with expertise in processing 

avocados. In 2007, Gonzalez and two Mexican businessmen -- Victor Sebastian-Mauricio and Jaime Sebastian-Mauricio (the “Brothers”) --formed a new business entity focused on processing avocados and selling avocado pulp and guacamole in Mexico and internationally. The newly-created Mexican entity was called Verfruco 

de Mexico, S. de R.L. de C.V. (“Verfruco Mexico”). Gonzalez received an 8% equity interest in Verfruco Mexico. The Brothers received a combined 35% ownership interest and became managersof-record for Verfruco Mexico, authorizing the Brothers to act on 

behalf of the company under Mexican law. 

In 2009, the Brothers established Verfruco US -- a United 

States entity with its principal place of business in Coral Gables, 

Florida -- to supply pulp and guacamole to a specific client based 

* Verfruco US identifies three orders in its notice of appeal: (1) the district 

court’s 17 November 2020 order granting Gonzalez’s section 1782 application; 

(2) the magistrate judge’s 14 April 2021 order denying Verfruco US’s motion 

to vacate and to quash the subpoenas; and (3) the district court’s 26 July 2021 

order affirming the magistrate judge. Gonzalez contends that Verfruco US’s 

notice of appeal (filed 24 August 2021) was untimely filed for the 17 November 

2020 order. We need not decide that issue today. Because we affirm the denial 

of Verfruco US’s motion to vacate the 17 November 2020 order, the underlying order necessarily stands, regardless of whether it was timely appealed.

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within the United States. The Brothers obtained a 97% ownership 

share in Verfruco US and provided Gonzalez with a 3% ownership 

share. 

By 2020, the overall Verfruco business had become a lucrative operation, generating more than $50 million in annual revenues. 

According to Gonzalez, the Brothers have since frozen him 

out of the business and have sought to deprive Gonzalez of his equity interest in Verfruco Mexico. Gonzalez contends that the 

Brothers transferred Verfruco Mexico’s assets and clientele to other 

companies owned or controlled (or both) by the Brothers, thus depleting Verfruco Mexico of all value. The companies to which assets were transferred include three Mexican entities: Freshcourt, S. 

de R.L. de C.V. (“Freshcourt”), Novafoods, S. de R.L. de C.V. (“Novafoods”), and FI Avocados, S. de R.L. de C.V. (“FI Avocados”).

Gonzalez filed in the United States District Court for the 

Southern District of Florida the section 1782 application underlying 

this appeal. Gonzalez said he intends to initiate litigation in Mexico 

against Verfruco Mexico, Freshcourt, Novafoods, and FI Avocados 

(collectively, the “Mexican Companies”) to recover the value of his 

8% ownership interest in Verfruco Mexico. In preparation for his 

anticipated litigation in Mexican court, Gonzalez sought to obtain 

from Verfruco US discovery about the purported fraudulent transfer of assets. 

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The district court granted Gonzalez’s application and ordered the Clerk of Court to issue the proposed subpoenas. The 

district court ordered Verfruco US to provide deposition testimony 

and to produce documents requested by subpoena that were 

within its “possession, custody, and/or control.” The subpoenas 

sought documentary and testimony evidence from Verfruco US on 

(1) assets, revenues, and profits of the Mexican Companies; (2) 

transfers of assets or cash from the Mexican Companies to the 

Brothers or to companies owned and/or controlled by them; and 

(3) evidence of Gonzalez’s ownership interest in the Mexican Companies and efforts to deprive him of that interest. 

Verfruco US moved to vacate the district court’s order and 

to quash the subpoenas. A magistrate judge denied the motions. 

Verfruco US objected to the magistrate judge’s ruling. The district 

court overruled those objections and affirmed the magistrate 

judge’s decision. This appeal followed.

II. 

We review for abuse of discretion the district court’s rulings 

on a section 1782 application, including the denial of a motion to 

vacate a section 1782 order. See In re Clerici, 481 F.3d 1324, 1331 

(11th Cir. 2007). We apply an “extremely limited and highly deferential” standard “identical to that used in reviewing the district 

court’s ordinary discovery rulings.” See id. Under this abuse-ofdiscretion standard, “we will leave undisturbed a district court’s 

ruling unless we find that the district court has made a clear error 

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of judgment, or has applied the wrong legal standard.” See Harrison v. Culliver, 746 F.3d 1288, 1297 (11th Cir. 2014). 

A district court has authority under section 1782 to grant an 

application for judicial assistance if these statutory requirements 

are met: (1) the request is “made by a foreign or international tribunal, or by any interested person”; (2) the request seeks testimonial or documentary evidence; (3) the requested evidence is “for 

use in a proceeding in a foreign or international tribunal; and (4) 

the person from whom discovery is sought . . . reside[s] or [is] 

found in the district of the district court ruling on the application 

for assistance.” Id. at 1331-32 (quotations omitted). That Gonzalez 

satisfied these statutory criteria is undisputed.

If all four statutory requirements are met, the district court 

may -- but is not required to -- grant relief under section 1782. Id. 

at 1332. In deciding whether relief is warranted, the district court 

next considers the four discretionary factors articulated in Intel 

Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004): 

(1) whether the person from whom discovery 

is sought is a participant in the foreign proceeding, . . 

. ; 

(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; 

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(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 otherwise unduly intrusive or burdensome. 

See id. at 1334 (quotations omitted) (citing Intel, 542 U.S. at 

264-65). Verfruco US raises no challenge to the district court’s determination that the second and third Intel factors weigh in Gonzalez’s favor. Only the first and fourth factors are at issue in this 

appeal.

A.

The magistrate judge determined that the first Intel factor 

weighed in Gonzalez’s favor. The magistrate judge noted that 

Gonzalez sought discovery from Verfruco US: a United States corporation not subject to the jurisdiction of the Mexican courts and 

“a nonparticipant in the prospective foreign proceeding.” Never 

did Verfruco US object in the district court to the magistrate 

judge’s findings or conclusions on the first Intel factor. 

On appeal, Verfruco US now contends that the “true targets” of Gonzalez’s discovery requests are the Mexican Companies: 

the intended defendants in the anticipated Mexican litigation. In 

support of its argument, Verfruco US relies chiefly on events that 

happened after the magistrate judge and the district court issued

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the orders underlying this appeal. Briefly stated, Verfruco US alleges that Gonzalez engaged in a “bait-and-switch” by expanding 

the scope of his discovery requests after the district court granted 

his section 1782 application and had affirmed the magistrate judge’s 

order denying Verfruco US’s motion to vacate. 

We will not consider this supposed new evidence on appeal. 

See Selman v. Cobb Cty. Sch. Dist., 449 F.3d 1320, 1332 (11th Cir. 

2006) (“In deciding issues on appeal we consider only evidence that 

was part of the record before the district court.”). The record that 

was before the district court at the pertinent time supports the 

magistrate judge’s determination that the first Intel factor favored 

Gonzalez. 

B.

About the fourth Intel factor, Verfruco US contends that 

Gonzalez’s discovery requests are unduly burdensome for two reasons: (1) because the requests seek evidence that “is within the exclusive possession of” the Mexican Companies; and (2) because 

Verfruco US supposedly lacks the requisite control over the Mexican Companies to obtain the evidence.

Discovery authorized under section 1782 is to be produced 

“in accordance with the Federal Rules of Civil Procedure.” 28 

U.S.C. § 1782(a). Under Fed. R. Civ. P. 45, subpoenaed parties are 

required to “produce designated documents, electronically stored 

information, or tangible things in that person’s possession, custody, 

or control.” See Fed. R. Civ. P. 45(a)(1)(A)(iii) (emphasis added). 

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Rule 45 imposes no geographical limitation on the location of documents or information to be produced. See Sergeeva v. Tripleton 

Int’l Ltd., 834 F.3d 1194, 1200 (11th Cir. 2016). Thus, a subpoenaed 

party can be required to “produce responsive documents and information located outside the United States --so long as [the party has] 

possession, custody, or control of such responsive material.” See 

id. 

We have “broadly construed ‘control’ for purposes of discovery as ‘the legal right to obtain the documents requested upon 

demand.’” See id. at 1201. A “legal right to obtain” does not require 

actual possession or legal control. See id. at 1201 n.6. Sufficient 

“control” may be established for discovery purposes by showing 

that “affiliated corporate entities . . . have actually shared responsive information and documents in the normal course of their business dealings.” Id. at 1201. 

Here, the magistrate judge determined that Verfruco US had 

sufficient “control” within the meaning of Rule 45 over documents 

within the physical possession of the Mexican Companies. Based 

on unrebutted sworn statements in Gonzalez’s declaration, the 

magistrate judge determined that Verfruco US and the four Mexican Companies share a common ownership. The magistrate judge 

also credited Gonzalez’s assertion that Verfruco US and the Mexican Companies operate essentially as a single business group. In 

doing so, the magistrate judge took judicial notice of the websites 

for Verfruco US and Freshcourt: websites that evidenced overlapping contact information, business addresses, and personnel 

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between Verfruco US, Verfruco Mexico, and Freshcourt. Verfruco 

US also registered in its own name the trademarks for Freshcourt 

and for Verfruco Mexico. 

In the light of the evidence of shared ownership and an interrelationship between Verfruco US and the Mexican Companies, 

the magistrate judge concluded that Gonzalez had demonstrated 

sufficiently that Verfruco US had the requisite “control” over requested documents within the physical possession or custody of 

the Mexican Companies. In a similar way, the magistrate judge 

concluded that Gonzalez’s discovery requests would result in no 

undue burden, given the shared management and ownership between Verfruco US and the Mexican Companies. 

On appeal, Verfruco US disputes the magistrate judge’s factual findings about the interrelationship between Verfruco US and 

the Mexican Companies. The magistrate judge’s factual findings 

are, however, supported by the undisputed record evidence then 

before the magistrate judge. Nothing evidences that the magistrate 

judge’s factual findings are clearly erroneous. We conclude that 

the magistrate judge made no clear error of judgment in determining that Verfruco US exercised sufficient control over the requested 

documents and that Gonzalez’s discovery requests stopped short 

of being “unduly burdensome.” 

Because the record supports the magistrate judge’s determination that all four Intel factors weighed in favor of Gonzalez, the 

district court abused no discretion in affirming the magistrate 

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judge’s denial of Verfruco US’s motion to vacate the order granting 

Gonzalez’s application for judicial assistance under section 1782.

AFFIRMED.

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