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13-4426-cv 

Mare Shipping Inc. v. Squire Sanders LLP 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER 

 

Rulings by summary order do not have precedential effect. Citation to a summary order filed 

on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate 

Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a 

document filed with this Court, a party must cite either the Federal Appendix or an 

electronic database (with the notation “summary order”). A party citing a summary order 

must serve a copy of it on any party not represented by counsel. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 30th day of July, two thousand fourteen. 

PRESENT: 

JOSÉ A. CABRANES, 

 SUSAN L. CARNEY, 

 CHRISTOPHER F. DRONEY, 

 Circuit Judges.

 

_____________________________________ 

MARE SHIPPING INC., Application for Discovery 

for use in Foreign Proceeding 28 U.S.C. § 1782,

APOSTOLOS MANGOURAS, 

 

Plaintiffs-Appellants, 

 

 v. No. 13-4426-cv 

 

SQUIRE SANDERS (US) LLP, BRIAN D. STARER, 

 ADR Providers-Appellees. 

_____________________________________ 

FOR PLAINTIFFS-APPELLANTS: THOMAS LEONARD TISDALE (Lauren 

Cozzolino Davies, on the brief), Tisdale 

Law Offices, LLC, New York, N.Y. 

FOR ADR PROVIDERS-APPELLEES: VICTOR GENECIN (Richard L. 

Mattiaccio, Squire Patton Boggs (US) 
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LLP, New York, N.Y.; Rebecca Anne 

Worthington, Squire Patton Boggs 

(US) LLP, Washington, D.C., on the 

brief), Squire Patton Boggs (US) LLP, 

New York, N.Y. 

 

Appeal from an October 23, 2013 Memorandum & Order of the United States District 

Court for the Southern District of New York (P. Kevin Castel, Judge). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of the District Court be AFFIRMED, without prejudice to 

renewal of appellants’ discovery request at a later date. 

BACKGROUND 

Appellants Mare Shipping Inc. (“Mare”) and Apostolos Mangouras (“Mangouras”) appeal 

from a decision of the District Court denying their motion to compel discovery for use in a foreign 

litigation, brought pursuant to 28 U.S.C. § 1782. The claim stems from the long and tortuous 

litigation that ensued after the sinking of an oil tanker, the Prestige, off the coast of Spain in 2002, 

releasing its cargo of 76,972 metric tons of oil into the coastline waters. Mangouras, who captained 

the Prestige during the relevant period—and who had sought, and been denied, a port of refuge in 

Spain immediately before severe weather caused the Prestige to sink—was charged with various 

crimes in Spain related to the events. There was a ten-year investigation in Spain, followed by a trial 

of approximately nine months’ duration (the “Spanish Action”). At the conclusion of the trial 

Mangouras was exonerated of all charges except one charge for “serious disobedience to authority” 

during the events in question. 

During this period, Spain also commenced an action in the Southern District of New York 

against the American Bureau of Shipping, for claims related to the sinking of the Prestige (the “New 

York Action”). For the New York Action, Spain—represented by defendant Starer, then housed at 

one firm, now currently at defendant Squire Sanders LLP—prepared various witness declarations 

(“the Declarations”). The New York Action was subsequently dismissed and the dismissal was 

affirmed by this Court. Reino de Espana v. Am. Bureau of Shipping, 691 F.3d 461 (2d Cir. 2012). 

According to appellants, it became apparent to them “near the end of the trial of the 

Spanish Action” against Mangouras and Mare that “some of these Declarations [prepared for the 

New York Action] were false or based upon false premises.” Appellants’ Br. 5. These Declarations 

are those of three individuals who ultimately testified as witnesses in the Spanish Action—in 

particular: George Alevizos, a technical superintendent working for the operator of the Prestige, who 

was retained by Spain as an “expert” regarding the condition of the Prestige; Danish pilot Jens Jorgen 

Thuesen, who guided the Prestige through the Danish straits in October 2002 and testified regarding 

the condition of the Prestige immediately prior to its sinking; and Captain Efstratios Kostazos, who 

had been the captain of the Prestige before Mangouras. Appellants maintain that the testimony of 
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these witnesses in the Spanish Action conflicted with what the witnesses had sworn in their 

Declarations for the New York Action, and that the truth—which emerged only when they testified 

in the Spanish Action in 2013—favored Mangouras. 

Appellants maintain that, “[a]s soon as they could do so after learning about the false nature 

of the Declarations on May 29-30, 2013,” they filed a discovery request, on July 8, 2013, for 

evidence related to the preparation of these Declarations by Spain’s New York counsel (appellants), 

pursuant to 28 U.S.C. § 1782. Appellants’ Br. 5. According to the submissions in support of the 

request, the discovery sought was for potential use in the Spanish Action (without mentioning that 

the public hearing component of the Spanish Action had closed two days after the request was filed), 

as well as a putative appeal of the Spanish action, a private criminal proceeding—known in Spain as 

a “Querella Criminal Complaint”—and an action in the European Court of Human Rights. We 

assume the parties’ familiarity with the underlying facts and the procedural history of the case. 

On appeal, appellants argue that the District Court erred in denying this discovery request. 

In particular, they assert that the District Court erred in (1) not giving adequate consideration to 

potential use of the sought discovery in a Querella Criminal Complaint; and in (2) denying, after 

applying the relevant standard, the discovery request. 

We review the District Court’s decision in a two-step process: “(1) as a matter of law, 

whether the District Court erred in its interpretation of the language of the statute; and (2) if not, 

whether the District Court’s decision to grant [or deny] discovery on the facts before it was in excess 

of its discretion.” Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76, 79 (2d Cir. 2012); see 

generally In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (explaining that the term “abuse of discretion” 

includes basing a ruling on “an erroneous view of the law”). 

DISCUSSION 

In determining whether to grant a § 1782 request, a district court must first determine 

whether it has jurisdiction to do so. We have held that “a district court is authorized to grant 

a § 1782 request where (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 

proceeding before a foreign tribunal, and (3) the application is made by a foreign or international 

tribunal or any interested person.” Schmitz v. Bernstein Liebhard & Lifshitz, LLP, 376 F.3d 79, 83 (2d 

Cir. 2004) (internal quotation marks, brackets, and ellipses omitted). 

A. INTEL ANALYSIS 

Once a District Court determines that it has jurisdiction over the request, the District Court 

has discretion to decide whether or not to grant it. See id. at 83-84. The Supreme Court has provided 

guidance in the form of several factors that a court should weigh in exercising its discretion. These 

considerations are: (1) whether “the person from whom discovery is sought is [not] a participant in 

the foreign proceeding,” which militates in favor of granting the request; (2) “the nature of the 
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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.” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264-65 

(2004). 

Here, the District Court correctly found that the mandatory, jurisdictional factors were met. 

It then applied the Intel factors, described above, to guide the exercise of its discretion, and 

determined that the Intel factors weighed against granting the request. We conclude that, in the 

circumstances presented, the District Court acted within its discretion in denying the § 1782 

discovery request based on the facts before it. 

However, we also note that the various foreign actions cited by plaintiffs as potential 

avenues for using the sought discovery are continually in flux. The District Court’s judgment should 

in no way be interpreted to bar plaintiffs from renewing the motion if appropriate circumstances 

arise in the future. Accordingly, we hereby ORDER that defendant not destroy any records, 

documents, or materials that may reasonably be considered to be subject to discovery under the 

§ 1782 request denied by the District Court, for a period of five years from the date of the entry of 

this Order. The District Court, having denied the discovery request for other reasons, had no 

occasion to evaluate the fourth Intel factor, examining whether the request was overly burdensome. 

Therefore, if plaintiffs make a renewed § 1782 discovery request in the future, the district court 

presented with the request may then consider whether it is overbroad. 

B. FOREIGN SOVEREIGN IMMUNITY 

Appellees also argue that the District Court erred in its determination that the discovery 

requests served on appellants were not foreclosed by the Foreign Sovereign Immunities Act of 1976 

(FSIA), 28 U.S.C. §§ 1330, 1602 et seq. They argue that the discovery requests served on appellees 

should be considered as requests upon a foreign sovereign, which are covered by the Act. We 

disagree. 

The Supreme Court recently underscored that “Congress established in the FSIA a 

comprehensive framework for resolving any claim of sovereign immunity,” and “any sort of 

immunity defense made by a foreign sovereign in an American court must stand on the Act’s text. 

Or it must fall.” Rep. of Argentina v. NML Capital, Ltd., 134 S. Ct. 2250, 2256 (2014) (internal 

quotation marks omitted). The FSIA applies to a foreign sovereign, or its “agency or 

instrumentality,” defined in the Act as any entity “which is an organ of a foreign state or political 

subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign 

state or political subdivision thereof.” 28 U.S.C. § 1603(b)(2). We agree with the District Court that 

such an explicit definition, by its plain text, excludes a foreign sovereign’s U.S. counsel. Cf. EM Ltd. 

v. Republic of Argentina, 695 F.3d 201, 210 (2d Cir. 2012) (holding that a discovery order directed at 

third party banks seeking information about Argentinian assets does not infringe Argentina’s 
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sovereign immunity under the FSIA, because “the banks’ compliance with subpoenas will cause 

Argentina no burden and no expense . . . . To the extent Argentina expresses concern that the 

subpoenas will reveal sensitive information, it is asserting a claim of privilege and not a claim of 

immunity”), aff’d, Rep. of Argentina v. NML Capital, Ltd., 134 S. Ct. 2250.

CONCLUSION 

The judgment of the District Court is AFFIRMED, without prejudice to renewal of 

appellants’ discovery request at a later date in the event that appropriate circumstances arise in the 

future. Appellees are hereby ORDERED to refrain from destroying, altering, or removing from 

the territorial limits of the United States any records, materials, or documents that may reasonably be 

considered to be subject to discovery pursuant to the § 1782 discovery order the District Court has 

denied, for a period of five years from the date of entry of this Order, unless otherwise directed by 

an order of a United States court. 

 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk