Case 1:21-mc-23271-DPG Document 3-3 Entered on FLSD Docket 09/10/2021 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION

DILLIAN WHYTE, )
)
Petitioner, ) Civil Case No. 1:21-MC-23271-DPG
)
v. )
)
WORLD BOXING COUNCIL, INC., )
)
Respondent. )
)
_____________________________________ )

APPLICANT’S MEMORANDUM OF LAW

IN SUPPORT OF HIS
APPLICATION FOR JUDICIAL ASSISTANCE
IN OBTAINING EVIDENCE FROM
WORLD BOXING COUNSEL, INC.
FOR USE IN A FOREIGN ARBITRAL PROCEEDING
PURSUANT TO 28 U.S.C. SECTION 1782
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MEMORANDUM OF LAW

TABLE OF CONTENTS…………………………………………………………………………... i

TABLE OF AUTHORITIES ……………………………………………………………………… ii

INTRODUCTION ……………………………………………………………………………..…… 1

I. MR. WHYTE'S APPLICATION MEETS ALL OF THE STATUTORY

REQUIREMENTS OF 28 U.S.C. § 1782 ………………………………………………… 1

A. Section 1782 Specifically Authorizes Discovery in the U.S. To

Facilitate Assistance To Foreign Tribunals ………………………………………… 1

1. Section 1782 and its Requirements …………………………………………. 1

2. Intel Corp. v. Advanced Micro Devices and its progeny ………………… 4

B. Mr. Whyte, the Applicant, Meets the Statutory Requirements of §1782 ……... 5

1. The WBC is a person found within this Court's jurisdiction as

required by Section 1782 ……………………………………………………… 6
2. Mr. Whyte is an '"Interested Person" Under Section 1782 ……………… 7
3. Mr. Whyte's Application Requests Documentary and Testimonial
Evidence.. ………………………………………………………………………... 8
4. The Evidence Will Be Used in Proceedings Before a Foreign or
International Tribunal is Necessary for Mr. Whyte's Arbitration
and Grievance Proceeding. …………………………………………………….. 9
(a) The Arbitral Tribunal in Switzerland Qualifies as a Foreign or
International Tribunal ……………………………………………………… 9

C. Granting the Application Would Foster the Twin Policy Aims

Behind Section 1782. ………………………………………………………… 12

II. THIS COURT SHOULD EXERCISE ITS DISCRETION PURSUANT TO

SECTION 1782 AND GRANT THE APPLICATION. ………………………………….. 13

A. Mr. Whyte and the WBC are Already Parties in the CAS Proceeding
and in the Grievance Proceeding……………………………………………………. 14
B. The Relevant Tribunals, Laws, and Rules are Not Hostile to this Application 15
C. The Application is Not Filed to Circumvent Any Law or Rule……………... 16
D. The Application and Discovery Requests are Narrowly Tailored………….... 16

III. THE WBC SHOULD BE ORDERED TO PRESERVE RELEVANT

EVIDENCE. ………………………………………………………………………………….. 16

CONCLUSION……………………………………………………...……………………………….. 17
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Table of Authorities

Cases:

1. In re Application of Gorsoan Ltd. and Gazprombank OJSC,

No. 13 Misc. 397(PPG), 2014 WL 7232262, *4-5
(S.D.N.Y., Dec. 10, 2014). …………………………………………………………. 1

2. In re Application of Grupo Qumma, S.A. de C. V,

2005 U.S. Dist. LEXIS 6898, *4-*5 (S.D.N.Y April 22, 2005) …………………… 4

3. In re Application of Servicio Pan Americana de Proteccion, S.A.,

354 F. Supp. 2d 269,273 (S.D.N.Y. 2004) …………………………………………n.1 at 4

4. In re Bayer AG, 146 F.3d 188 (3d Cir. 1998). ……………………………………… 2

5. Brandi-Dohrn v. IKB Deutsche Industriebank AG,

673 F.3d 76 (2d Cir. 2012) ………………………………………………………n.1 at. 3

6. In re Clerici, 481 F.3d 1324 (11th Cir. 2007) ………………………… 5-6, 8, 14, 16, 17

7. Consorcio Ecuatoriano de Telecomunicaciones S.A.

v. JAS Forwarding (USA), 747 F.3d 1262 (11th Cir. 2014) ………………………… 2, 3

8. In re: Edelman, 295 F.3d 171, 175 (2d Cir. 2002) ……………………………….. n.1 at 3

9. In re: Gianoli Aldunte, 3 F.3d 54 (2d Cir. 1993) …………………………………n.1 at 3

10. Intel Corp. v. Advanced Micro Devices, 546 U.S. 241 (2004) …………. 4-7, 10-13, 16

11. John Deere Ltd. v. Sperry Corp., 754 F.2d 132

(3d Cir. 1985) …………………….…………………………………………………. 12

12. In re Judicial Assistance Pursuant to 28 U.S.C. § 1782 by

Macquarie Bank Ltd., 2015 U.S. Dist. LEXIS 72544, *4
(D. Nev., May 28, 2015) …………………………………………………………….. 4-5

13. Lancaster Factoring Co. Ltd. v. Mangone, 90 F.3d 38 (2d Cir. 1996) ……………... 12

14. In re Letter Rogatory from the Nedenes District Court, Norway,

216 F.R.D. 277 (S.D.N.Y. 2003). ……………..……………..……………..………… 3

15. Lo Ka Chun, 858 F.2d 1564 (11th Cir. 1988) ……………..……………..………….. 3

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16. In re Request for Assistance From Ministry of Legal Affairs of Trinidad

and Tobago, 848 F.2d 1151 (11th Cir. 1988). ……………..……………..…………..3, 6

17. In re Roz Trading Ltd., 469 F. Supp. 2d 1221 (N.D. Ga. 2006) ...……………………..n.2 at 11

18. Schmitz v. Bernstein, Liebhard & Lifhsitz, LLP, 376 F.3d 79 (2d Cir. 2004) ………... 2

19. United Kingdom v. United States, 238 F.3d 1312 (11th Cir. 2001) ……………..…… 3

20. Weber v. Finker, 554 F.3d 1379 (11th Cir. 2009) ……………..……………..………. 1

Articles
21. David A. Losk, Section 781(a) After Intel: Reconciling Policy
Considerations and a Proposed Framework on Judicial Assistance to
International Arbitral Tribunals, 27 CARDOZO L. REV. 1035, 1062 (2005). ………. 13

22. Hans Smit, The Supreme Court Rules on the Proper Interpretation of Section 1782… 10

23. Hans Smit, International Litigation Under the United States Code,
65 Columbia L. Rev. 1015 (1965). ……………..…………..……………..…………... 10

24. Hans Smit, Its Potential Significance for International Arbitration,

14 AM. REV. INT’L ARB. 295 (2003). ……………..……………..……………..…… 10

Statute:
25. 28 U.S.C. § 1782 ……………..……………..……………..……………..………Passim

Treaty
26. Convention on Enforcement of International Arbitration Awards of 1958,
commonly known as the New York Convention. ……………..……………..….… 12 and 15

Foreign Authorities:
27. Swiss Federal Tribunal Decision, ATF 129 III 445, para. 3.3.4 ……………..……… 11, 15

28. Swiss Federal Tribunal Decision, ATF 144 III 120, para. 3.4.1) ……………..………11, 15

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INTRODUCTION

Applicant Dillian Whyte, a highly ranked professional boxer, and the Interim Champion in

the heavyweight division of the World Boxing Council, Inc.’s (“WBC” or “Defendant”),

respectfully submits this memorandum of law in support of its Application for an order for

discovery pursuant to 28 U.S.C. section 1782 (“the Application”) from WBC, which resides in this

district, for the limited purpose of obtaining information and evidence for use in an arbitration

proceeding currently pending before the Court of Arbitration for Sport (“CAS”) in Lausanne,

Switzerland concerning a contract between Mr. Whyte and the WBC that the WBC has breached

as well as in potential future proceedings between the parties which are pending at a preliminary

stage but may end with a CAS arbitration. Mr. Whyte needs this relief on an expedited basis

because of the pendency of deadlines in the CAS arbitration proceeding.

The discovery requested is narrowly tailored. Mr. Whyte seeks two individual depositions of

WBC officers, and one Rule 30(b)(6) deposition of the WBC. Mr. Whyte also seeks responses to

ten requests for production of documents. The WBC is found within this District so the Court has

jurisdiction over it and Mr. Whyte has otherwise met the requirements of the statute authorizing

this action, found at 28 U.S.C. section 1782.

I. MR. WHYTE'S APPLICATION MEETS ALL OF THE STATUTORY

REQUIREMENTS OF 28 U.S.C. § 1782

A. Section 1782 Specifically Authorizes Discovery in the U.S. To Facilitate

Assistance To Foreign Tribunals

1. Section 1782 and its Requirements.

Section 1782 provides this Court with ample discretion to allow for the taking of discovery

consonant with the Federal Rules of Civil Procedure to assist a foreign tribunal in its proceedings.

See Weber v. Finker, 554 F.3d 1379, 1394 (11th Cir. 2009) (quoting In re Clerici, 481 F.3d 1324,

1336 (11th Cir. 2007)); see also In re Application of Gorsoan Ltd. and Gazprombank OJSC, No.

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13 Misc. 397(PPG), 2014 WL 7232262, *4-5 (S.D.N.Y., Dec. 10, 2014). Section 1782 provides in

pertinent part as follows:

“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 ...
The order may be made ... upon the application of any interested person and
may direct that the testimony or statement be given, or the document or
other thing be produced, before a person appointed by the court.”

28 U.S.C. § 1782 reflects a nearly 150-year Congressional policy 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 (2004).

The current version of §1782 was amended in 1964. See Consorcio Ecuatoriano de

Telecomunicaciones S.A. v. JAS Forwarding (USA), 747 F.3d 1262, 1269 (11th Cir. 2014) ("In

1964, section 1782 was completely revised and considerably broadened"). Section 1782 was

amended "to facilitate the conduct of litigation in foreign tribunals, improve international

cooperation in litigation, and put the United States into the leadership position among world nations

in this respect." See In re Bayer AG, 146 F.3d 188, 191-92 (3d Cir. 1998). According to the Senate

Report that accompanied the final iteration of the bill that became law, comprising §1782:

"[Congress] hoped that the initiative taken by the United States in improving its procedures will

invite foreign countries similarly to adjust their procedures." Id. at 191 (quoting S. Rep. No. 88-

1580, at 2 (1964), reprinted in 1964 U.S.C.C.A.N. 3783); see also In re Request for Assistance

From Ministry of Legal Affairs of Trinidad and Tobago, 848 F.2d 1151, 1153 (11th Cir. 1988).

Courts are in unison in underscoring that §1782 has two "twin" aims: (1) provide an efficient

means of assistance to participants in international litigation in federal court, and (2) encourage

foreign tribunals to provide similar means of assistance to our U.S. courts. See, e.g., Schmitz v.

Bernstein, Liebhard & Lifhsitz, LLP, 376 F.3d 79, 83 (2d Cir. 2004) (citing In re Application of

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Malev Hungarian Airlines, 964 F.2d 97, 100 (2d Cir. 1992)); In re Letter Rogatory from the

Nedenes District Court, Norway, 216 F.R.D. 277, 278 (S.D.N.Y. 2003).

The Eleventh Circuit has long recognized that §1782 "reflects congressional desire to increase

the power of district courts to respond to requests for international assistance". Ministry of Legal

Affairs of Trinidad and Tobago, 848 F.2d at 1154; see also Consorcio Ecuatoriano de

Telecomunicaciones S.A., 747 F.3d at 1269 (citing Lo Ka Chun v. Lo To, 858 F.2d 1564, 1565 (11th

Cir. 1988)).

In tracing the general contours of congressional intent with respect to section 1782, the

Ministry of Legal Affairs of Trinidad and Tobago court enunciated that Congress had deliberately

broadened the scope of § 1782 to (1) include not only depositions and testimony, but also obtaining

documents and other tangible evidence, (2) permit U.S. district courts to assist proceedings in

"foreign tribunals" not just "courts," (3) allow an "interested person" (not just a foreign tribunal) to

request judicial assistance, and (4) eliminate the requirement that discovery be used in a pending

foreign proceeding, and only require that it be used in a foreign proceeding or tribunal. 848 F.2d at

1153-54. Within the broad scope of §1782, and in line with congressional intent, Eleventh Circuit

courts regularly practice ample discretion in granting requests for assistance under §1782. See

United Kingdom v. United States, 238 F.3d 1312, 1318-19 (11th Cir. 2001) (section 1782 requests

are left to the "sound discretion" of the district courts); Lo Ka Chun, 858 F.2d 1564, 1565-66

(11th Cir. 1988) (Congress has given the district courts "broad discretion" under § 1782). 1

1
Similarly, courts like the Second Circuit, have stated that the goals of § 1782 are to provide
"equitable and efficacious" discovery procedures in the United States courts for the benefit of
tribunals and litigants involved in litigation with international aspects, and to encourage foreign
countries by example to provide similar means of assistance to American courts. See Brandi-Dohrn
v. IKB Deutsche Industriebank AG, 673 F.3d 76, 80 (2d Cir. 2012) (quoting S. Rep. No. 1580, 88th
Cong., 2nd Sess. 2 (1964) reprinted in 1964 U.S.C.C.A.N. 3782, 3783); see also In re: Gianoli
Aldunte, 3 F.3d 54, 58 (2d Cir. 1993) (same); In re: Edelman, 295 F.3d 171, 175 (2d Cir. 2002)
("At bottom, this statute affords access to discovery of evidence in the United States for use in
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2. Intel Corp. v. Advanced Micro Devices and its progeny.

In 2004 the Supreme Court adopted the seminal decision Intel Corp. v. Advanced Micro

Devices, 546 U.S. 241 (2004), where it provided lower courts with clear and broad guidelines

to resolve disputes arising from § 1782 applications. The Court held that a complainant before

the Directorate General Competition of the Commission of the 4European Communities ("the

Commission") qualifies as an "interested party" within the ambit of § 1782. Moreover, the

Supreme Court added that the Commission "is a §1782(a) ‘Tribunal' when it acts as a first-

instance decision-maker." In this connection, the opinion also makes clear that the proceeding

"for which discovery is sought under §l782(a) must be in reasonable contemplation, but need

not be pending or imminent." Finally, the Supreme Court reasoned that §1782(a) contains no

threshold requirement that evidence sought from a federal district court would be discoverable

under the law governing the foreign proceeding. Id. at 246. This holding was reached after

enunciating the need to devise a two-prong test when considering a §1782 application. The

analysis is succinct and practical.

First, a district court must determine whether it has jurisdiction to grant the application.

This rudimentary prong comprises three conditions that must be met: "(l) the person from

whom discovery is sought has to reside or be found in the district in which the discovery

application is made, (2) it is critical for the discovery at issue to be earmarked for use only in

a proceeding pending before a foreign tribunal, and (3) the application shall be sought by an

"interested person." See also In re Judicial Assistance Pursuant to 28 U.S.C. § 1782 by

foreign proceedings."); In re Letter 2, 4 from the Nedenes District Court, Norway, 216 F.R.D. at
279 ("Therefore, granting a motion to compel ... to provide a blood sample would efficiently assist
a request made by the Norwegian Court and would encourage Norway to provide similar assistance
to our courts.") See also Intel, 546 U.S. at 247-248; In re Application of Grupo Qumma, S.A. de C.
V, 2005 U.S. Dist. LEXIS 6898, *4-*5 (S.D.N.Y April 22, 2005); In re Application of Servicio Pan
Americana de Proteccion, S.A., 354 F. Supp. 2d 269,273 (S.D.N.Y. 2004).
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Macquarie Bank Ltd., 2015 U.S. Dist. LEXIS 72544, *4 (D. Nev., May 28, 2015) (citing Pott

v. Icicle Seafoods, Inc., 945 F. Supp. 2d 1197, 1199 (W.D. Wash. 2013.) As more fully

discussed below, Mr. Whyte easily satisfies each of these three requirements.

The second prong is equally pragmatic and premised on bolstering the very precepts

that Congress attempted to further in enacting §1782. If the three statutory requirements are

met, a district court must then exercise its discretion in deciding whether to grant discovery.

It must be observed that a district court is not required to grant a §1782 discovery application

only because it has authority to do so. Intel, 564 U.S. at 264. The Supreme Court took pains

to underscore and highlight factors that serve as guideposts for district courts in the exercise

of such discretion: "(a) whether the person or entity from whom discovery is sought is a

participant in the foreign proceeding (If so, the need for judicial assistance is generally not as

apparent as when evidence is sought from a nonparticipant)”; (b) "the nature of the foreign

tribunal, the character of the proceeding underway abroad, and the receptivity of the foreign

government or the court or agency abroad to U.S. federal-court judicial assistance"; and (c)

whether the application is an effort to "circumvent foreign proof-gathering restrictions or

other policies of a foreign country or the United States" or is "unduly intrusive or

burdensome." Id. at 264-65; see also In re Clerici, 481 F.3d at 1334. None of these limiting

factors is present in the case at hand.

This holding and analysis comports generally with §l782's legislative history from where

Congressional intent and meaning can be gleaned.

B. Mr. Whyte, the Applicant, Meets the Statutory Requirements of §1782

Courts have distilled from the statutory language of 28 U.S.C. §1782 the following basic

requirements for its invocation: "(1) the request must be made by a foreign or international

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tribunal or by any interested person; (2) the request must seek evidence, whether it be the

testimony or statement of a person or the production of a document or other thing; (3) the evidence

must be for use in a proceeding in a foreign or international tribunal; and (4) the person from

whom discovery is sought must reside or be found in the district of the district court ruling on the

application for assistance." In re Clerici, 481 F.3d 1324, 1331-32 (11th Cir. 2007); see also Intel

Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 246-47 ( 2004) .

Mr. Whyte meets all of these requirements.

1. The WBC is a person found within this Court's jurisdiction as required by

Section 1782

The language of §1782 provides that a district court "of the district in which a person resides

or is found" may order that person to give testimony or produce documents. The Dictionary Act

containing the definitions that govern the meaning of the terms of congressional enactments

provides that "unless the context indicates otherwise," the word "person" includes "corporations,

companies, associations, firms, partnerships, societies, and joint stock companies, as well as

individuals." 1 U.S.C. §1 (2017). A corporation such as the WBC thus falls within this definition's

purview.

The U.S. District Court for the Southern District of Florida and the Eleventh Circuit have

exercised the discretion provided for in §1782 in favor of issuing subpoenas for company records;

relief similar to that which Mr. Whyte seeks pursuant to the Application. See Ministry of Legal

Affairs of Trinidad and Tobago, supra at 1151 (11th Cir. 1988) (affirming trial court's grant of

Trinidad's Minister of Legal Affairs'§ 1782 application for bank records).

Here, the Application seeks company records and videotaped deposition testimony

concerning the dealings of the WBC relating to Mr. Whyte, his rankings, and the decisions made

by the WBC that affected Mr. Whyte’s ranking and the rankings of others since 2015. It is exactly

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discovery of this ilk that is permitted (and, indeed, contemplated) pursuant to both §1782 and

Eleventh Circuit authority.

The WBC is found in this District, having made repeated government filings
h since at

least as early as 2015 confirming that it is conducting business under its own name from 2688

SW 137th Ave., Miami, FL 33175, and it maintains a registered agent for service of process at that

address. Brieant Decl. ¶¶ 2-3 and Exs. A and B. Both its annual Internal Revenue Service required

publicly available tax returns (since at least 2015) and its corporate formation filings and annual

reports filed with the Secretary of State of Florida (since at least 2015) confirm this. Brieant Decl.

¶¶ 2-3 and Exs. A and B.

Accordingly, the WBC resides or is found within the district in which Mr. Whyte seeks

evidence, and has done so for all relevant time periods, as required by 28 U.S.C. §1782(a) and

is therefore subject to the jurisdiction of this Court.

2. Mr. Whyte is an '"Interested Person" Under Section 1782.

Under Intel Corp. v. Advanced Micro Devices, 546 U.S. 241 (2004), Mr. Whyte is an

"interested person" within the meaning of section 1782, as he is gathering this evidence and

testimony for use before a foreign tribunal in connection with an existing arbitration against

the WBC before the CAS and in preparation for his pending grievance which could end up

before the CAS. Mr. Whyte is also an "interested person" within the meaning of section 1782,

as he is party to an arbitration which requires evidence from WBC for use in a proceeding

before a foreign tribunal. In Intel, the Supreme Court found that a complainant who triggered

an investigative commission proceeding was an "interested person," because such an

individual had a reasonable interest in obtaining judicial assistance. See Intel, 542 U.S. at 256

(explaining that the complainant "possesses a reasonable interest in obtaining judicial

assistance and therefore qualifies as an interested person within any fair construction of the

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term") (citing Smit, International Litigation Under the United States Code 1027 (1965) for

the proposition that "any interested person is intended to include not only litigants before

foreign or international tribunals, but also foreign and international officials as well as any

other person whether he be designated by foreign law or international convention or merely

possess a reasonable interest in obtaining the assistance.").

Thus, because Mr. Whyte requires evidence from the WBC in order to be able to fully

prosecute his arbitration claims and his separate grievance claims against the WBC, as well

as for the purpose of defending against any arguments made by the WBC in the arbitration or

the grievance proceedings, his interest in obtaining judicial assistance is reasonable and

satisfies the requirements of section 1782.

3. Mr. Whyte's Application Requests Documentary and Testimonial

Evidence

Mr. Whyte’s Application requests documentary and testimonial evidence from the

WBC as set forth in Exhibits E and F of the Brieant Declaration. The requests are for 2

individual depositions and one Fed. R. Civ. P. 30(b)(6) deposition, and 9 document requests

with subparts. The discovery requests for testimony and evidence is narrowly tailored to the

dispute and are not submitted for any improper purpose, but rather are submitted for the

purpose of permitting Mr. Whyte to prove his claims and defend against the allegations of the

WBC. Accordingly, Mr. Whyte satisfies the section 1782 requirement that the request must

seek evidence, whether it be the testimony or statement of a person, or the production of a

document or other thing. See In re Clerici, 81 F.3d at 1331-32.

///

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4. The Evidence Will Be Used in Proceedings Before a Foreign or

International Tribunal is Necessary for Mr. Whyte's Arbitration
and Grievance Proceeding.

(a) The Arbitral Tribunal in Switzerland Qualifies as a

Foreign or International Tribunal

As described previously, the evidence and testimony sought in this Application are also

necessary so that Mr. Whyte can prosecute his Request for Arbitration and defend against

arguments that the WBC was not in breach of the Settlement Agreement. Brieant Decl. Ex. D. As

detailed below, the CAS also qualifies as a foreign or international tribunal and independently

satisfies this element of a successful section 1782 application. In Intel, AMD filed an antitrust

complaint against Intel with the Directorate-General for Competition of the Commission of the

European Communities. Intel, 542 U.S. at 246 (2004). In connection with that complaint, AMD

sought documents from Intel pursuant to section 1782. Id. The district court denied AMD's request,

concluding that the discovery requested was not authorized by section 1782. Id. The US Court of

Appeals for the Ninth Circuit reversed. On appeal, the Supreme Court affirmed the Ninth Circuit's

decision and, in so doing, provided some insight as to what constitutes a proper section 1782

"tribunal" under the statute.

Specifically, the Supreme Court found that when Congress amended §1782 in 1964,

substituting the words "a proceeding in a foreign or international tribunal" for the former "any

judicial proceeding" it did so in order to "provid[e] the possibility of U.S. judicial assistance

in connection with [administrative and quasi-judicial proceedings abroad]." Id. at 258, citing

S. Rep. 1580. at 7-8, U.S. Code Cong. & Admin. News 1964, pp. 3782, 3788. The

Supreme Court went on to hold that the European Commission was, in fact, a section

1782 "tribunal" because it acted as a "first-instance decision-maker" with authority to

"determine liability and impose penalties, dispositions that [would] remain final unless

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overturned by the European courts." Id. at 15.

The Supreme Court in Intel had previously sketched how the European Commission,

acting through the Directorate-General for Competition, enforces European competition laws

and regulations and noted in this regard that both, "a decision not to proceed" by the

Directorate­General for Competition or, alternatively, a recommendation to "dismiss[s] the

complaint or issu[e] a decision finding infringement and imposing penalties," once acted upon

by the European Commission, were subject to judicial review in the Court of First Instance,

and, ultimately, the European Court of Justice. Id. at 254-55. Considering it "beyond question"

that the Court of First Instance and the European Court of Justice qualified as "tribunals," the

Supreme Court reasoned that there was no cause to exclude the European Commission since

AMD could not use the evidence before the reviewing courts (which were not "proof-taking').

Professor Hans Smit, the Director of the Columbia Law School Project on International

Procedure and the Reporter to the Commission responsible for the 1964 amendments to section

1782, was cited with approval throughout the Court's opinion in Intel. Professor Smit has written

extensively on the question presented here and has stated repeatedly that section 1782 covers private

arbitral tribunals. See, e.g., Hans Smit, The Supreme Court Rules on the Proper Interpretation of

Section 1782: Its Potential Significance for International Arbitration, 14 AM. REV. INT’L ARB.

295 (2003). Indeed, Professor Smit's 1965 article, published shortly after the 1964 legislation, states

that "[t]he term 'tribunal' embraces all bodies exercising adjudicatory powers, and includes

investigating magistrates. administrative and arbitral tribunals, and quasi-judicial agencies, as well

as conventional civil, commercial. criminal and administrative courts." Hans Smit, International

Litigation Under the United States Code, 65 Columbia L. Rev. 1015, 1026 n.71 (1965). Critically,

the Court in Intel recognized, albeit in dicta, that “arbitral tribunals” fall within the meaning of

“foreign or international tribunal” for purposes of section 1782(a). See Intel, 542 U.S. at 258.

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In addressing the question of which entities “qualify as tribunals,” id. at 257-58, the Court

quoted approvingly Professor Smit, whose contemporaneous written work confirms that an

“arbitral tribunal” constitutes a “tribunal” under the revised statute. Id. (quoting Smit, International

Litigation under the United States Code, 65 COLUM. L. REV. 1015, 1026- 27, nn. 71, 73 (1965)

(stating “[t]he term ‘tribunal’ embraces all bodies exercising adjudicatory powers, and includes

investigating magistrates, administrative and arbitral tribunals, and quasi-judicial agencies, as well

as conventional civil, commercial, criminal, and administrative courts” and, “The increasing

number and importance of international tribunals make this liberal provision of assistance in aid of

litigation in international tribunals of great significance. . . . The new legislation also authorizes

assistance in aid of international arbitral tribunals.”). It is not surprising that the majority cited

Professor Smit’s section 1782 commentary with approval no less than six times, given the critical

role he played in its 1964 revision. 2

Here, the CAS tribunal is an arbitral body empowered under Swiss law to exercise a

judicial function. Under Swiss law, the CAS Panel is recognized as an arbitral tribunal within the

meaning of the Swiss Public International Law Act ("PILA"). Based on consistent case law of the

Swiss Federal Tribunal, the CAS as an institution provides for sufficient guarantees of

independence so that its awards are considered as proper arbitral awards, equivalent to state

judgements (see, e.g., ATF 129 III 445, ¶ 3.3.4; ATF 144 III 120, ¶ 3.4.1). Zbinden Decl. ¶ 6.

CAS awards are subject to review by the Swiss Federal Tribunal under the PILA which governs

review of international arbitration awards on the bases enumerated in that law, which consist

2
In In re Roz Trading Ltd., the court found that:
“A finding that an arbitral panel . . . is a ‘tribunal’ within the meaning of §1782(a) is
consistent with the reasoning in Intel. Although Intel did not expressly hold arbitral
bodies to be ‘tribunals,’ it quoted approvingly language that included arbitral tribunals
within the term's meaning in §1782(a).”

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mainly of review of procedural issues. The SFT’s jurisdiction is mandatory, meaning that any

challenges to CAS awards, as is the case with any challenges to other international commercial

arbitration awards, must be filed with the SFT. Zbinden Decl. ¶ 7. Switzerland, like the United

States, is a signatory to the Convention on Enforcement of International Arbitration Awards of

1958, commonly known as the New York Convention. Among the functions exercised under this

judicial authority, the arbitral tribunal here is empowered to receive and weigh evidence and

authorized under that same law to issue adjudicative, binding decisions. Id.

C. Granting the Application Would Foster the Twin Policy Aims Behind Section
1782.

Granting the Application also would foster section 1782's "twin aims of providing efficient

assistance to participants in international litigation and encouraging foreign countries by

1

example to provide similar assistance to our courts." Intel, 542 U.S. at 252 (internal quotations

omitted). The first aim would be served because the proposed discovery is narrowly tailored

to seek evidence highly relevant to Mr. Whyte’s prosecution of his Request for Arbitration

and to his ability to rebut defenses that might be asserted by the WBC. Thus. granting the

Application would be an efficient means of providing assistance to a party before a foreign

tribunal. See Lancaster Factoring Co. Ltd. v. Mangone, 90 F.3d 38, 41 (2d Cir. 1996) (goals

of section 1782, which dates to 1855, are to provide "equitable and efficacious·discovery

procedures in U.S. courts 'for the benefit of tribunals and litigants involved in litigation with

international aspects"') (quoting S. Rep. No. 1580, 88th Cong., 2d Sess. 2 (1964) ("Senate

Report")). These "twin aims are consistent with the legislative history of section 1782, as

recognized in John Deere Ltd. v. Sperry Corp., 754 F.2d 132, 135 (3d Cir. 1985) (noting that

legislative history of §1782 "reflects a determination on the part of Congress to broaden the scope

of international judicial assistance afforded by the federal courts" and that through its passage

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Congress hoped that it would stimulate reciprocal aid from other countries and that a "liberal intent

to provide judicial assistance" has been "acknowledged as a primary statutory goal since

section l782's inception").

Equally important, United States federal court assistance furthers the well-established

federal policy in favor of international arbitration. Moreover, assistance under section 1782 can

improve the accuracy and efficiency of arbitration. See, e.g., David A. Losk, Section 781(a)

After Intel: Reconciling Policy Considerations and a Proposed Framework on Judicial

Assistance to International Arbitral Tribunals, 27 CARDOZO L. REV. 1035, 1062 (2005).

Accordingly, both the Intel factors and the "twin aims" of section 1782 support the

granting of Mr. Whyte’s Application. In summary, because Mr. Whyte has more than amply

met all the requirements for invoking 28 U.S.C. §1782, this Court has discretion to order the

WBC to provide the requested discovery.

II. THIS COURT SHOULD EXERCISE ITS DISCRETION PURSUANT TO SECTION

1782 AND GRANT THE APPLICATION.

Once a Court has determined that the statutory requirements for relief under section

1782 have been met, the Court is vested with the discretion to afford that relief. In Intel, the

Supreme Court delineated certain factors that district courts should apply in deciding whether

section 1782 relief should be granted to an applicant. Intel, 542 U.S. 241. The Court is free to

consider and weigh these factors as it sees fit, because it is widely acknowledged that the

Supreme Court’s pronouncements on these factors in Intel were intended to allow the district

courts to have flexibility and discretion.

Those factors are: (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

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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 §l782(a) request conceals an attempt to circumvent

foreign proof-gathering restrictions or the policies of a foreign country or the United States";

and (4) whether the request is otherwise “unduly intrusive or burdensome." Id. at 264-65; see

also In re Clerici, 481 F.3d at 1329-30. Applying these factors supports granting this Application.

A. Mr. Whyte and the WBC are Already Parties in the CAS Proceeding and in
the Grievance Proceeding

In the CAS Code, there is no provision for taking depositions or obtaining other US-style

discovery. The ability to seek documents from the other party is limited in the CAS Code. Zbinden

Decl. ¶ 5. The CAS Code does not provide for American-style discovery, including depositions.

In CAS proceedings, under the CAS Code a party may request documents, but those requests are

very limited. Zbinden Decl. ¶ 5.

Mr. Whyte had asked the WBC to produce a number of the requested documents in the June

2020 Grievance and the WBC failed to do so; in its answer to Mr. Whyte’s Request for Arbitration

in the CAS proceedings, the WBC states that it does not have to do so because the WBC Rules

and Regulations do not provide for it. Brieant Decl. ¶ 7. As a result, Mr. Whyte would have almost

no recourse to obtain the evidence he seeks here before the CAS tribunal, and the WBC would

refuse to provide it (as it has said).

The WBC reference to CAS as the arbitration tribunal, rather than allowing boxers like Mr.

Whyte to litigate against it, appears to have been done intentionally to avoid having to provide any

discovery; the WBC’s arbitration provision is found in the WBC Rules and Regulations and has

been imposed on boxers like Mr. Whyte as a condition of participating in WBC events. The

WBC’s position to deny requests for documents in disputes involving the WBC essentially allows

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the WBC to hide behind its own rule changes with no transparency or accountability.

Accordingly, Section 1782 affords Mr. Whyte with a right to obtain evidence he could not

otherwise obtain so that he can fully prosecute his arbitration claims.

B. The Relevant Tribunals, Laws, and Rules are Not Hostile to this Application

The law of Switzerland is not hostile to the discovery sought nor is the CAS Code. In civil

law jurisdictions like Switzerland, there is no concept similar to common law discovery practice

such as exists in the United States. Zbinden Decl. ¶¶ 5, 9. In fact, the CAS procedural rules, the

CAS Code of Sport-related arbitration (“CAS Rules”), do not provide for mandatory discovery,

whereby parties are required to disclose documents relevant to the case, even if adverse to their

own position, before the evidentiary hearing. Zbinden Decl. ¶ 9. In addition, like the rules of all

international commercial arbitration institutions, the CAS rules do not provide for depositions.

Zbinden Decl. ¶ 5.

Under Swiss law, the CAS Panel is recognized as an arbitral tribunal within the meaning of

the Swiss Public International Law Act ("PILA"). Zbinden Decl. ¶ 6. Based on consistent case law

of the Swiss Federal Tribunal, the CAS as an institution provides for sufficient guarantees of

independence so that its awards are considered as proper arbitral awards, equivalent to state

judgements (see, e.g., ATF 129 III 445, ¶ 3.3.4; ATF 144 III 120, ¶ 3.4.1). Zbinden Decl. ¶ 6.

CAS awards are subject to review by the Swiss Federal Tribunal under the PILA which

governs review of international arbitration awards on the bases enumerated in that law, which

consist mainly of review of procedural issues. Zbinden Decl. ¶ 7. The SFT’s jurisdiction is

mandatory, meaning that any challenges to CAS awards, as is the case with any challenges to other

international commercial arbitration awards, must be filed with the SFT. Zbinden Decl. ¶ 7.

Switzerland, like the United States, is a signatory to the Convention on Enforcement of

International Arbitration Awards of 1958, commonly known as the New York Convention.

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Zbinden Decl. ¶ 8. As a result, the policy of the US Supreme Court and of US law favoring

resolving disputes in arbitration is vindicated. Accordingly, this factor is met.

C. The Application is Not Filed to Circumvent Any Law or Rule

This Application is not interposed for any improper purpose or to circumvent any law or

rule. Brieant Decl. ¶ 8; Zbinden Decl. ¶ 9. Without Section 1782 relief, Mr. Whyte will likely be

foreclosed from obtaining important evidence necessary for his arbitration claims in the current

CAS proceedings and in his likely future CAS proceeding against the WBC as the CAS Rules

do not provide for American-style discovery. Zbinden Decl. ¶ 5. In addition, Mr. Whyte is

concerned about the potential loss of evidence as a result of the passage of time and the document

retention policies of WBC, and the likelihood that WBC may undertake to destroy relevant

evidence in a bid to defend itself. Brieant Decl. ¶ 9. As a result, the Court should consider this

factor met.

D. The Application and Discovery Requests are Narrowly Tailored

Finally, this Application is narrowly tailored to the subject matter of the WBC’s treatment of

Mr. Whyte since 2015, which is the crux of the dispute in the CAS proceeding as well as in the

likely future CAS proceeding Mr. Whyte believes he will have to bring with respect to the WBC’s

denial of his recent petition and grievance. Since the discovery covers only the subject matter in

dispute between the parties, it cannot be intrusive or burdensome. See Brieant Decl. ¶¶ 5-6 and

Exhibits E and F; Zbinden Decl. ¶¶ 9 and 10.

In short. the factors identified by the Intel and In re Clerici Courts all favor the granting

of Mr. Whyte’s Application.

III. THE WBC SHOULD BE ORDERED TO PRESERVE RELEVANT EVIDENCE

Given that the requested evidence is for use in filed arbitration and grievance

proceedings, Mr. Whyte seeks an order directing the WBC to preserve the evidence sought

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by Mr. Whyte. Any issues that the WBC may have with the proposed discovery can be

addressed in response to the requested discovery. See, e.g., In re Clerici, 481 F.3d at 1329

(affirming district court's denial of motion to vacate order granting ex parte application for

discovery pursuant to 28 U.S.C. § 1782). Given that the relevant events took place beginning

in 2015 and continued through today, Mr. Whyte is concerned that some or all of the

documentary evidence sought may be lost or jeopardized by the WBC’s document

retention policies or otherwise (including possibly intentional conduct). To the extent that

any of the requested evidence may be discarded or deleted, manually or automatically, the

WBC should be directed to preserve all such potentially relevant evidence.

CONCLUSION

WHEREFORE, since all of the relevant legal requirements have been met, Mr. Whyte

respectfully requests that the Court grant this Application pursuant to 28 U.S.C. §1782,

compelling the production of the documents listed in Exhibit F to the Brieant Decl., within

thirty (30) days of service of a subpoena commanding the production of documents by the

WBC, permitting the depositions requested in Exhibit E to the Brieant Decl., within eleven

(11) days following the deadline for the production of the documents by WBC; and directing

WBC to duly preserve all evidence related to the subject matter of this Application.

DATED: September 9, 2021. Respectfully submitted,

LAW OFFICE OF VICTORIA E. BRIEANT, P.A.

By: /s/ Victoria E. Brieant
Victoria E. Brieant, FBN 632961
4000 Ponce de Leon Blvd., Suite 470
Coral Gables, FL 33146
Tel.: 305-421-7200
Email: victoria@brieantlaw.com

Attorney for Petitioner Dillian Whyte

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