Nouvel, LLC v. Mondo Bongo, LLC, Et Al, 22-55737, No. 2 (9th Cir. Aug. 3, 2022)

Case: 22-55737, 08/03/2022, ID: 12509143, DktEntry: 2-1, Page 1 of 29
CASE NO. 22-55737
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
NOUVEL, LLC,
Petitioner-Appellee,
v.
MONDO BONGO, LLC, WILLIAM B. PITT, and

WARREN GRANT,
Respondents-Appellants.
Appeal From the United States District Court,

Central District of California
Case No. 2:22-mc-00004-MCS-CFE
EMERGENCY MOTION UNDER CIRCUIT RULE 27-3

APPELLANTS’ MOTION FOR STAY PENDING APPEAL
RELIEF REQUESTED BY AUGUST 17, 2022
William Savitt (admission forthcoming) Laura W. Brill (195889)

Sarah K. Eddy (admission forthcoming) KENDALL BRILL & KELLY LLP
Adam Goodman (admission forthcoming) 10100 Santa Monica Blvd., Suite 1725
WACHTELL, LIPTON, ROSEN & KATZ Los Angeles, CA 90067
51 West 52nd Street Telephone: (310) 556-2700
New York, NY 10019
Telephone: (212) 403-1000
Attorneys for Respondents-Appellants Mondo Bongo, LLC,

William B. Pitt, and Warren Grant
Pursuant to Federal Rule of Appellate Procedure 8(a)(2) and Circuit Rule
27-3, Appellants Mondo Bongo, LLC, William B. Pitt, and Warren Grant
(“Appellants”) submit this emergency motion for an immediate stay of the District
Court’s July 22, 2022 Order Accepting the Report & Recommendation, to avoid
significant and irreparable harm to Appellants pending appeal.
CIRCUIT RULE 27-3 CERTIFICATE
The undersigned counsel, Laura W. Brill, certifies on behalf of Appellants as
follows:
I. Counsels’ Contact Information
Counsel for Appellee Nouvel, LLC can be reached as follows:
Keith R. Hummel
CRAVATH, SWAINE & MOORE LLP
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
Telephone: (212) 474-1000
Facsimile: (212) 474-3700
khummel@cravath.com
James Lee (192301)

Enoch Liang (212324)
Joe Tuffaha (253723)
LTL ATTORNEYS LLC
300 South Grand Avenue, Suite 1400
Los Angeles, CA 90071
Telephone: (212) 474-1000
Facsimile: (212) 474-3700
james.lee@ltlattorneys.com
enoch.liang@ltlattorneys.com
joe.tuffaha@ltlattorneys.com
i
Counsel for Appellants can be reached as follows:
Laura W. Brill (195889)

KENDALL BRILL & KELLY LLP
10100 Santa Monica Blvd., Suite 1725
Telephone: (310) 556-2700
Facsimile: (310) 556-2705
lbrill@kbkfirm.com
William Savitt (admission forthcoming)

Sarah K. Eddy (admission forthcoming)
Adam Goodman (admission forthcoming)
WACHTELL, LIPTON, ROSEN & KATZ
51 West 52nd Street
New York, NY 10019
Telephone: (212) 403-1000
Facsimile: (212) 403-2000
wdsavitt@wlrk.com
skeddy@wlrk.com
algoodman@wlrk.com
II. Relief Sought in the District Court
This appeal concerns an application for discovery under 28 U.S.C. § 1782,
filed by Nouvel on January 7, 2022. Ex. 1 (App. for an Order Pursuant to 28
U.S.C. § 1782) (“App.”)). Following the grant of that application on an ex parte
basis on January 12, 2022, Ex. 2 (Ex Parte Order Granting App.), Nouvel served
subpoenas on Appellants. On March 17, 2022, Appellants moved to quash. Ex. 3
(Memo. of P&A in Support of Mot. (“Mot.”)). Nouvel filed its opposition on May
ii
6, 2022, Ex. 4 (Memo. of P&A in Opp. to Mot. (“Opp.”)), and Appellants replied
on May 20, 2022, Ex. 5 (Reply in Further Support of Mot. (“Reply”)).
Appellants’ motion to quash was referred to the Honorable Charles Eick,
who issued a Report and Recommendation advising the District Court to deny it on
June 8, 2022. Ex. 6 (“R&R”). Appellants filed objections to the R&R, Ex. 7
(Objections to the R&R) (“R&R Objections”)), and Nouvel replied, Ex. 8
(Response to R&R Objections) (“R&R Response”)). In a July 22, 2022 order, the
District Court rejected Appellants’ objections and denied Appellants’ motion to
quash. Ex. 9 (“Order”). In addition, the order denied Appellants’ request for a
stay pending appeal. Id. at 4.
III. Facts Showing Existence and Nature of the Emergency
On July 28, 2022, Nouvel’s counsel sent a letter to Appellants’ counsel
demanding that Appellants complete their production of documents responsive to
the subpoenas and provide a privilege log by August 15, 2022. Ex. 10 (Letter from
K. Hummel to Counsel to Appellants, July 8, 2022). An emergency stay is
necessary to prevent the irreparable harm that Appellants would suffer as a result
of the disclosure of confidential and proprietary information belonging to Château
Miraval, in which Appellants Pitt and Mondo Bongo are indirect shareholders and
Grant is a former director, as well as information belong to Miraval Provence, in
which Appellants Pitt and Mondo Bongo are also indirect shareholders. The harm
iii
from the release of this sensitive information to Appellee Nouvel — now
nominally controlled by competitor spirits business, Stoli Group — could not be
undone. In addition, release of this information would moot Appellants’ appeal,
causing irreparable harm. See Khrapunov v. Prosyankin, No. 18-16254 (9th Cir.
order entered Aug. 2, 2018).
Appellants could not have moved sooner for relief in this Court, as
Appellants were not informed of Nouvel’s desired production deadline until July
28, 2022.
IV. Notification and Service of Opposing Counsel
Counsel for Nouvel was notified of the filing of this motion on July 29,
2022, and have indicated that Nouvel intends to oppose it. Nouvel’s counsel will
be served with the filing by CM/ECF and electronic mail.
iv
CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, disclosure is hereby
made that Appellant Mondo Bongo, LLC is a private limited liability company that
has no parent organization. No publicly held corporation owns more than 10% of
its stock.
v
TABLE OF CONTENTS
INTRODUCTION ..................................................................................................... 1
BACKGROUND AND PROCEDURAL HISTORY ............................................... 3
I. Background ........................................................................................................... 3
II. Procedural history ................................................................................................. 7
ARGUMENT ............................................................................................................. 7
I. Appellants are likely to succeed on the merits. .................................................... 8
The District Court failed to address foreign-law disputes............................... 9
The District Court failed to address the international comity concerns
raised by the subpoenas. ................................................................................ 12
II. Appellants will be irreparably harmed absent a stay. ....................................... 14
III. Nouvel will not be injured by a stay. ................................................................ 15
IV. The public interest favors a stay. ....................................................................... 16
CONCLUSION ........................................................................................................ 16
vi
TABLE OF AUTHORITIES
CASES
Akebia Therapeutics, Inc. v. Fibrogen, Inc.,

No. 15-15274 (9th Cir. order entered Mar. 16, 2015) ............................................8
All. for the Wild Rockies v. Cottrell,

632 F.3d 1127 (9th Cir. 2011) ................................................................................8
Baxalta Inc. v. Genentech, Inc.,

2016 WL 11529803 (N.D. Cal. Aug. 9, 2016) .....................................................10
Becker v. United States,

451 U.S. 1306 (1981) ...........................................................................................14
Berhardt v. Cnty. of Los Angeles,

279 F.3d 862 (9th Cir. 2002) ................................................................................15
Cryolife, Inc. v. Tenaxis Med., Inc.,

2009 WL 88348 (N.D. Cal. Jan. 13, 2009) ..........................................................10
In re Accent Delight Int’l,

2018 WL 7473109 (S.D.N.Y. June 27, 2018) ......................................................15
In re Cathode Ray Tube (CRT) Antitrust Litig.,

2012 WL 6878989, at *2 (N.D. Cal. Oct. 22, 2012) ............................................13
In re Digitechnic,
2007 WL 1367697 (W.D. Wash. May 8, 2007) ...................................................10
In re Gorsoan Ltd.,
2020 WL 4194822 (S.D.N.Y. July 21, 2020) ......................................................16
In re Microsoft Corp.,
428 F. Supp. 2d 188 (S.D.N.Y. 2006), abrogated on other grounds by
In re del Valle Ruiz, 939 F.3d 520 (2d Cir. 2019) ................................................13
In re OOO Promnefstroy,
2009 WL 3335608 (S.D.N.Y. Oct. 15, 2009), abrogated on other grounds by
In re del Valle Ruiz, 939 F.3d 520 (2d Cir. 2019) .......................................... 11-13
vii
Intel Corp. v. Advanced Micro Devices, Inc.,

542 U.S. 241 (2004) ..................................................................................... passim
John Doe Agency v. John Doe Corp.,

488 U.S. 1306 (1989) ...........................................................................................14
Khrapunov v. Prosyankin,
931 F.3d 922 (9th Cir. 2019) ................................................................................10
Khrapunov v. Prosyankin,
No. 18-16254 (9th Cir. order entered Aug. 2, 2018) ....................................... 8, 14
Lair v. Bullock,
697 F.3d 1200 (9th Cir. 2012) ............................................................................7, 9
Leiva-Perez v. Holder,
640 F.3d 962 (9th Cir. 2011) .............................................................................. 7-8
Mees v. Buiter,
793 F.3d 291 (2d Cir. 2015) .................................................................................12
Nikon Corp. v. GlobalFoundries U.S. Inc.,

2017 WL 4865549 (N.D. Cal. Oct. 26, 2017) ......................................................15
Siemens AG v. W. Digital Corp.,

2013 WL 5947973 (C.D. Cal. Nov. 4, 2013) .................................................. 9, 10
ZF Auto. US, Inc. v. Luxshare, Ltd.,

142 S. Ct. 2078 (2022) .........................................................................................12
STATUTES AND RULES
28 U.S.C. § 1782 .............................................................................................. passim
viii
INTRODUCTION
This appeal from an order under 28 U.S.C. § 1782 centers on Angelina
Jolie’s unlawful sale of her ownership interest in Château Miraval, a French
company comprising a home and vineyard in the south of France. Château
Miraval was jointly owned through Appellee Nouvel and Appellant Mondo Bongo,
limited liability companies controlled by Jolie and Appellant Brad Pitt,
respectively. In October 2021, Jolie sold Nouvel to Stoli Group — a competitor of
Château Miraval — in breach of rights she and Nouvel owed Pitt and Mondo
Bongo. Pitt never consented to the sale and is now challenging its validity in
California state court, with further litigation pending in Luxembourg.
Against that backdrop, Nouvel filed an ex parte § 1782 application, seeking
discovery in connection with the Luxembourg proceeding as well as a threatened
suit in France against Château Miraval and its affiliate Miraval Provence. After
the District Court authorized Nouvel’s application, Appellants moved to vacate the
ex parte order and quash Nouvel’s subpoenas. In briefing that motion, the parties
recognized that the dispute is governed by Intel Corp. v. Advanced Micro Devices,
Inc., 542 U.S. 241 (2004), in which the Supreme Court established a four-factor
analysis to guide the exercise of judicial discretion under § 1782. Because the Intel
analysis turns on questions of foreign procedure, including whether the requested

evidence is available or admissible overseas, the parties submitted dueling expert
affidavits opining on Luxembourgish and French law.
But those issues of foreign procedure were never decided. Instead, the
District Court concluded that it was unnecessary to take up foreign-law disputes so
long as there was “some doubt” whether Appellants would prevail. This was an
abuse of discretion, departing from the guidance of this Court and the Supreme
Court. It also reflects a division of authority within the Circuit, where trial courts
disagree as to whether foreign-law disputes need be resolved under Intel.
Moreover, because the District Court brushed French law to the side, it
failed to address the significant comity concerns raised by Nouvel’s application.
The clash between sovereigns could not be more stark: French courts have already
prohibited Nouvel from receiving many of the documents it seeks and are
presently weighing whether to permit Nouvel access to other documents that fall
within its subpoenas. The Supreme Court’s § 1782 analysis was calibrated to
prevent precisely the outcome ordered below — an American court ordering the
production of documents in service of foreign litigation, even though discovery of
the same documents is pending decision overseas.
The decision below thus presents substantial issues that demand resolution
by this Court. Those issues will never reach this Court, however, absent a stay
pending appeal — because Nouvel is demanding near-immediate compliance with
its subpoenas. Appellants thus face the irreparable harm of compelled disclosure
2
that would moot their appeal. To prevent that harm, and to vindicate the
considerations of comity underlying the Supreme Court § 1782 jurisprudence,
Appellants respectfully request that the Court enter a stay pending a decision on
the merits.
BACKGROUND AND PROCEDURAL HISTORY
I. Background
In 2008, Brad Pitt and Angelina Jolie acquired Château Miraval, a French
company comprising a home and vineyard in the south of France. Ex. 11 (Compl.,
William B. Pitt v. Angelina Jolie, No. 22STCV06081 (Cal. Sup. Ct. Feb. 17,
2022)) ¶¶ 13, 14. Pitt and Jolie purchased the company through their acquisition of
Quimicum, a Luxembourg limited liability company that owns Château Miraval
and nothing else. Id. ¶ 13. Pitt — through Mondo Bongo, his California LLC —
paid €15 million to obtain a 60% interest in Quimicum and, thus, Château Miraval.
Id. ¶ 16. Jolie — through Nouvel, her California LLC — paid €10 million to
obtain a 40% interest in Quimicum and, thus, Château Miraval. Id. ¶¶ 16-18.
In 2013, Pitt identified one of France’s most highly regarded winemakers as
a partner to reinvent Château Miraval’s wine business. Id. ¶ 34. The resulting
joint venture, Miraval Provence, quickly became one of the world’s preeminent
makers of rosé. Id. ¶ 35-36. In December 2013 — several months before Pitt and
Jolie were married at the Château Miraval estate — Pitt entered into a transaction
that transferred 10% of Quimicum to Jolie for the sum of €1, never paid, such that
3
Mondo Bongo and Nouvel each nominally hold a 50% interest in Quimicum, and
by extension, Château Miraval. Id. ¶ 29. Pitt made this transfer in reliance on
contractual agreements he and Mondo Bongo made with Jolie and Nouvel that no
party could alienate their interest in Château Miraval without the other’s approval.
Id. ¶ 30.
In 2016, Jolie filed for divorce. Id. ¶ 38. Over the next several years, Jolie
engaged in exclusive negotiations with Pitt for him to buy her interest in Château
Miraval — honoring the contractual rights she owed him. Id. ¶¶ 50-55. But in
June 2021, with negotiations nearly complete, Jolie’s representatives abruptly
terminated discussions. Id. ¶ 56. In October 2021, Pitt learned through a press
release that Jolie had sold Nouvel, and thus her stake in Château Miraval, to an
entity controlled by Stoli Group — in subversion of Pitt’s and Mondo Bongo’s
contractual rights. Id. ¶ 59.
Since nominally acquiring Nouvel, Stoli Group has launched a multi-
pronged offensive to take control of Château Miraval. Id. ¶¶ 64-66. Through
Nouvel, Stoli has imposed gridlock in the enterprise’s governance, attempting to
expand the size of Quimicum’s management board and install Stoli representatives.
Id. ¶ 65. Stoli has sought to transfer Miraval-related intellectual property to
Cyprus as part of an unsound and legally questionable tax dodge. Id. ¶ 66. And
Stoli asked Château Miraval’s bank to effectively freeze Château Miraval’s assets
4
by sharply limiting its ability to transact — a demand the bank promptly declined.
Id.
Most significant here, however, are Stoli’s repeated attempts to use Nouvel
to access the confidential and proprietary information of Château Miraval and
Miraval Provence, the joint venture that owns Château Miraval’s wine business.
Stoli — owned and operated by a competitor spirits company — has used Nouvel
to improperly contact Miraval Provence’s distributors to discuss contract terms,
without authority and without Miraval Provence’s knowledge or consent. Id. Stoli
has also demanded from Château Miraval a laundry list of commercial information
that would allow Stoli to conduct an indirect audit of the entity.
It is against this backdrop that Stoli-controlled Nouvel launched its
application seeking the same information under 28 U.S.C. § 1782. The subpoenas
Nouvel issued to Appellants pertain, in part, to proceedings Mondo Bongo filed
against Nouvel in Luxembourg, seeking to invalidate the 2013 transfer of 10% of
Quimicum from Mondo Bongo to Nouvel on the ground that the transaction is void
for lack of consideration. Nouvel has never sought discovery from anybody —
including Mondo Bongo — in Luxembourg.
The subpoenas also pertain to an action Nouvel claims it is planning to bring
in France against the directors and officers of Château Miraval and Miraval
Provence. According to Nouvel, its suit will allege that (1) Château Miraval
allowed Miraval Provence “to register as its own Chateau Miraval’s trademarks
5
. . . for no compensation,” and (2) “Pitt and his directors appear to have wasted the
Chateau’s assets . . . on renovations that lack a business function.” Ex. 8 (R&R
Response) at 3.
In connection with this contemplated action, Nouvel has filed successive ex
parte discovery applications in the French courts. Its first ex parte application,
filed on December 14, 2021, sought an expansive set of documents from Château
Miraval, including all of Château Miraval’s commercial, accounting, financial,
contractual, governance, and IP-related materials. Ex. 12 (Nouvel’s Proposed
French Discovery Order, Dec. 14, 2021). On December 22, 2021, the French court
denied that application because Nouvel was not permitted access to this
information as an indirect shareholder of Château Miraval. Ex. 13 (French Order
Denying Nouvel’s Discovery App., Dec. 22, 2021). “[O]nly” Quimicum was
permitted access. Id.
Less than one month later, Nouvel filed two more ex parte discovery
applications in France against Château Miraval and Miraval Provence. These
applications sought a narrower set of documents that more directly pertain to
Nouvel’s contemplated trademark claims. Ex. 14 (Nouvel’s French Discovery
App., Feb. 9, 2022). The applications were quickly granted, and the French courts
authorized search orders on Château Miraval and Miraval Provence that were
executed on March 4, 2022. See Ex. 15 (Decl. of Alain Maillot in Support of Mot.)
¶ 16. The documents obtained via this procedure are being held in escrow while
6
the French courts weigh Château Miraval’s and Miraval Provence’s challenges to
these orders. Id. Nouvel has yet to file any underlying merits claim in France.
II. Procedural history
On January 7, 2022, Nouvel filed its § 1782 application, Ex. 1, which was
granted on an ex parte basis five days later, Ex. 2. On March 17, 2022, Appellants
moved to quash the subpoenas issued by Nouvel pursuant to its application. Ex. 3.
On June 8, 2022, Judge Eick issued a Report and Recommendation supporting
denial of the motion to quash. Ex. 6. On July 22, 2022, the District Court entered
an order accepting the R&R. Ex. 9. That order also denied Appellants’ request for
a stay pending appeal. Id. at 4.
On July 29, 2022, Appellants filed their notice of appeal from the District
Court’s order. Appellants now bring this motion to stay the decision below
pending resolution of their appeal by this Court.
ARGUMENT
The grant of a stay pending appeal involves the balancing of four
considerations: “(1) whether the stay applicant has made a strong showing that he
is likely to succeed on the merits; (2) whether the applicant will be irreparably
injured absent a stay; (3) whether issuance of the stay will substantially injure the
other parties interested in the proceeding; and (4) where the public interest lies.”
Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012). The Court applies a “sliding
scale” in weighing these factors, under which “a stronger showing of one element
7
may offset a weaker showing of another.” Leiva-Perez v. Holder, 640 F.3d 962,
964-66 (9th Cir. 2011).
If the Court does not authorize a stay pending this appeal, there will be no
appeal, because Nouvel will rush to compel production before the Court issues its
decision. In like circumstances — to prevent irreparable harm flowing from
mandatory production — this Court has repeatedly authorized temporary stays of
discovery under § 1782. See, e.g., Khrapunov v. Prosyankin, No. 18-16254 (9th
Cir. order entered Aug. 2, 2018); Akebia Therapeutics, Inc. v. Fibrogen, Inc., No.
15-15274 (9th Cir. order entered Mar. 16, 2015); see also All. for the Wild Rockies
v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (“Under [the sliding scale]
approach, the elements of the preliminary injunction test are balanced . . . a
stronger showing of irreparable harm to plaintiff might offset a lesser showing of
likelihood of success on the merits.”). The Court should follow that practice here,
to avoid irreparable harm, resolve a division of authority among the district courts
of this Circuit, and prevent the imminent preemption of overseas discovery
proceedings.
I. Appellants are likely to succeed on the merits.
In the decision on appeal, the District Court abused its discretion by
expressly declining to resolve key foreign-law disputes and failing to address
related comity concerns. Appellants thus have a “substantial case on the merits”
8
supporting the grant of a stay that would maintain the status quo pending appeal.
Lair, 697 F.3d at 120.
The District Court failed to address foreign-law disputes.
In Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), the
Supreme Court identified four factors that courts should consider in making the
discretionary decision to grant or deny § 1782 discovery: (1) whether evidence
“may be outside the foreign tribunal’s jurisdictional reach”; (2) “the nature of the
foreign tribunal, the character of the proceedings underway abroad, and the
receptivity of the foreign government or the court . . . to U.S. federal-court judicial
assistance”; (3) whether the request “conceals an attempt to circumvent foreign
proof-gathering restrictions or other policies of a foreign country”; and (4) whether
the request is “unduly intrusive or burdensome.” Id. at 264-65.
The first three Intel factors present questions of foreign law, as to which the
parties joined issue below through the submission of affidavits from experts in
Luxembourgish and French law. But the District Court did not resolve those
disputes. Instead, Judge Eick concluded that the District Court “should not”
consider such issues, Ex. 6 (R&R) at 7, and the District Court agreed, holding that
it was not “necessary” to make findings as to which party “correctly
characterize[d] [foreign] law and procedure.” Ex. 9 (Order) at 2 (quoting Siemens
AG v. W. Digital Corp., 2013 WL 5947973, at *2 (C.D. Cal. Nov. 4, 2013)). The
court thus discarded without analysis Appellants’ arguments and evidence
9
concerning Luxembourgish and French law. That outcome echoed a handful of
prior trial-court decisions within this Circuit, which have similarly declined to
resolve foreign-law disputes in granting applications under § 1782. See Siemens
AG, 2013 WL 5947973, at *2; Cryolife, Inc. v. Tenaxis Med., Inc., 2009 WL
88348, at *3 (N.D. Cal. Jan. 13, 2009).
This Court has never endorsed the approach adopted by the District Court.
To the contrary, in Khrapunov v. Prosyankin, 931 F.3d 922 (9th Cir. 2019), the
Court recently reversed and remanded a § 1782 determination with instructions to
conduct “additional fact-finding” on issues of foreign law. Id. at 925. Other
district courts within this Circuit have likewise interpreted Intel to require a careful
examination of foreign-law issues. In In re Digitechnic, 2007 WL 1367697 (W.D.
Wash. May 8, 2007), for example, the court performed a comprehensive review of
both parties’ evidence on foreign discovery procedure and the record in the
underlying proceedings abroad. Id. at *4-5. And in Baxalta Inc. v. Genentech,
Inc., 2016 WL 11529803 (N.D. Cal. Aug. 9, 2016), the court weighed the parties’
submissions concerning the foreign jurisdiction’s receptivity to § 1782 evidence
and foreign discovery procedure. Id. at *5-7.
The District Court’s departure from these precedents was dispositive below.
First, the District Court discarded Appellants’ evidence demonstrating that
Luxembourg would permit the discovery that Nouvel has sought here. This goes
to the first Intel factor, which considers whether discovery is available in the
10
“foreign tribunal’s jurisdiction.” Intel, 542 U.S. at 264. To establish the
availability of Luxembourgish discovery, Appellants submitted expert affidavits
and relevant Luxembourgish caselaw. Ex. 16 (Decl. of Véronique Hoffeld in
Further Support of Mot.); Ex. 17 (TAL-2019-06643, Luxembourg District Court,
Mar. 19, 2021) 27-29. Rather than address this evidence, the District Court
weighed the first Intel factor against Appellants because it had “some doubt that
the requested discovery is or will become available in the foreign courts.” Ex. 9
(Order) at 2 (emphasis added). See also Ex. 6 (R&R) at 9 (weighing the first Intel
factor against Appellants because “[s]ufficient doubt pervades the issue of the
alleged availability of the subject discovery”). But the first Intel factor does not
ask whether there is “some doubt” that a petitioner may obtain foreign discovery.
Instead, it requires the finder of fact to scrutinize the availability of discovery
overseas.
Second, the District Court declined to address disputed issues of French law.
Just months before Nouvel filed its § 1782 application, a French court held that
Nouvel was prohibited from accessing Château Miraval’s confidential and
proprietary business information, because Nouvel is only an indirect shareholder of
Château Miraval. Ex. 13 (French Order Denying Nouvel’s Discovery App., Dec.
22, 2021). Under the third Intel factor, permitting Nouvel access to the very same
material via § 1782 would circumvent French proof-gathering restrictions. Intel,
542 U.S. at 264-65; see also In re OOO Promnefstroy, 2009 WL 3335608, at *9

11
(S.D.N.Y. Oct. 15, 2009), abrogated on other grounds by In re del Valle Ruiz, 939
F.3d 520 (2d Cir. 2019). Alerted to this evidence, the District Court acknowledged
that the “third Intel factor concerns foreign ‘rules akin to privileges that prohibit
the acquisition or use of certain materials.’” Ex. 9 (Order) at 3 (quoting Mees v.
Buiter, 793 F.3d 291, 303 n.20 (2d Cir. 2015)). But it failed to address how the
French corporate law restrictions at issue miss the mark.
Nouvel has argued that the authorities urging a close analysis of foreign law
under Intel are “wrong[],” and that it should receive the benefit of the “doubt” on
the parties’ disputes. Ex. 4 (Opp.) at 13-14; Ex. 8 (R&R Response) at 11. This
appeal thus squarely presents the question whether a court abuses its discretion by
expressly disregarding arguments and evidence arising out of disputed issues of
foreign law before ordering invasive discovery under § 1782. Intel itself makes
clear that the answer to this question is yes, by directing finders of fact to analyze
issues of foreign law. Intel, 542 U.S. at 264-65. To correct the line of district
court cases that hold otherwise — and preserve Appellants’ right to appeal on an
issue that has split the district courts in this Circuit — the Court should issue a stay
pending appeal.
The District Court failed to address the international comity

concerns raised by the subpoenas.
The District Court also abused its discretion by failing to address “the
animating purpose of § 1782” — international comity. ZF Auto. US, Inc. v.
12
Luxshare, Ltd., 142 S. Ct. 2078, 2088 (2022). If the District Court’s order is not
stayed, the subpoenas it authorizes will intrude on both past and pending French
court proceedings.
As Nouvel has acknowledged, the French courts are currently reviewing
whether it is entitled to receive many of the documents that it has sought in this
proceeding. Ex. 4 (Opp.) at 18. As Nouvel’s own expert has likewise
acknowledged, the French courts have held that it is prohibited from accessing
other documents sought here, due to its status as an indirect shareholder of Château
Miraval. Ex. 18 (Decl. of Stéphane Bonifassi in Support of App.) ¶ 10. These
French court orders demonstrate that a French court would not “welcome the
proposed discovery” targeted in Nouvel’s § 1782 subpoenas. In re Cathode Ray
Tube (CRT) Antitrust Litig., 2012 WL 6878989, at *2 (N.D. Cal. Oct. 22, 2012).
To the contrary, the issuance of subpoenas for those documents in this proceeding
would “frustrate the careful balance struck by the [foreign] courts in the
underlying” litigation. In re OOO Promnefstroy, 2009 WL 3335608, at *9. And
any decision by this Court would plainly “either preempt or contradict” prior and
anticipated rulings by the French courts. In re Microsoft Corp., 428 F. Supp. 2d at
195 (S.D.N.Y. 2006), abrogated on other grounds by In re del Valle Ruiz, 939 F.3d
520 (2d Cir. 2019).
The Section 1782 discovery authorized by the District Court thus runs
directly contrary to the comity concerns that animate the second and third Intel
13
factors. See Intel, 542 U.S. at 264 (instructing factfinders to consider the “nature
of the foreign tribunal,” “the character of the proceedings underway abroad,” and
the risk of “circumvent[ion of] foreign proof-gathering restrictions” in deciding
§ 1782 applications). Yet the District Court was silent on the evident conflict
between Nouvel’s subpoenas and its efforts to obtain overlapping discovery in
France. This was an independent abuse of discretion.
II. Appellants will be irreparably harmed absent a stay.
Appellants will suffer two distinct forms of irreparable harm in the absence
of a stay. First, absent a stay, Appellants will be stripped of their right to judicial
review, because the appeal will be rendered moot. As the Ninth Circuit has
recognized in granting emergency motions to stay pending appeal from orders
granting discovery under § 1782, the loss of Appellants’ appeal right constitutes
irreparable harm. See Khrapunov v. Prosyankin, No. 18-16254 (9th Cir. order
entered Aug. 2, 2018) (citing Becker v. United States, 451 U.S. 1306, 1311 (1981)
(“The balance of equities tips heavily in favor of applicants. If a stay is not
granted, . . . the[] appeal may well become moot . . . .”); John Doe Agency v. John
Doe Corp., 488 U.S. 1306, 1309 (1989) (“The fact that disclosure would moot that
part of the Court of Appeals’ decision . . . would also create an irreparable
injury.”)).
Second, Appellants will face irreparable harm from the unnecessary
disclosure of confidential and proprietary information to Stoli Group, the

14
aggressive competitor spirits business that now controls Nouvel. Stoli, through
Nouvel, seeks virtually all documents from the past decade that in any way relate
to Château Miraval or Miraval Provence. In particular, Nouvel’s subpoenas ask
for all documents concerning the companies’ intellectual property, finances,
operations, assets, property renovations, and potential sale. Because “the
proverbial bell cannot be unrung,” Appellants will be required to produce all of
this information in the absence of a stay. In re Accent Delight Int’l, 2018 WL
7473109, at *1 (S.D.N.Y. June 27, 2018) (staying production of § 1782 discovery
pending appeal); see also Berhardt v. Cnty. of Los Angeles, 279 F.3d 862, 871 (9th
Cir. 2002) (“Where the activities sought to be enjoined already have occurred, and
the appellate courts cannot undo what has already been done, the action is moot,
and must be dismissed.”).
III. Nouvel will not be injured by a stay.
Nouvel will not be harmed by a temporary stay pending expedited resolution
of this appeal. While a § 1782 applicant may incur injury if it does not receive
discovery “until after expiration of [] deadlines in the foreign proceeding,” that is
not a concern here. Nikon Corp. v. GlobalFoundries U.S. Inc., 2017 WL 4865549,
at *3 (N.D. Cal. Oct. 26, 2017). There are no looming overseas deadlines.
In Luxembourg, litigation is still in its infancy. There is no schedule in
place that would threaten Nouvel’s ability to use the discovery it seeks under
§ 1782. As for France, Nouvel’s contemplated action is still not filed. Thus, there
15
is no danger that a stay would jeopardize Nouvel’s use of any discovery obtained
here. See In re Gorsoan Ltd., 2020 WL 4194822, at *7 (S.D.N.Y. July 21, 2020)
(granting stay after finding no merit to § 1782 applicant’s argument that it would
receive discovery “too late for it to be of use” in the foreign proceeding).
IV. The public interest favors a stay.
Finally, the public interest favors granting a stay. Because granting a stay
poses no risk of harm to Nouvel, a stay would act solely to “preserv[e] judicial
resources by avoiding unnecessary proceedings while the appeal in this action is
pending.” Gorsoan, 2020 WL 4194822, at *8. A stay would also serve the “public
interest in comity between the United States and foreign tribunals,” id., because it
would permit this Court to consider Appellants’ arguments that Nouvel is using
§ 1782 to circumvent French proof-gathering restrictions and intrude on a pending
French discovery proceeding directed to many of the same documents.
CONCLUSION
For the reasons stated above, Appellants respectfully request that this Court
stay the District Court’s order pending the resolution of their appeal.
Dated: August 3, 2022 KENDALL BRILL & KELLY LLP
By: s/ Laura W. Brill

Laura W. Brill
Attorneys for Appellants
16
CERTIFICATE OF CONFERENCE
Counsel for Nouvel was notified of the filing of this motion on July 29, 2022
and have indicated that Nouvel intends to oppose it.

Laura W. Brill
17
STATEMENT OF RELATED CLASSES
Appellants are not aware of any related cases pending in this Court.

Laura W. Brill
18
CERTIFICATE OF SERVICE
The undersigned certifies that on this 3st day of August, 2022, a copy of
Appellant’s Emergency Motion Under Circuit Rule 27-3 for Stay Pending Appeal
was electronically transmitted to the United States Court of Appeals for the Ninth
Circuit using the Court’s ECF filing system and was served on the following
parties via (i) electronic notice pursuant to the Court’s ECF filing system, or (ii) by
United States first class mail, postage prepaid, to the persons who do not receive
electronic notice pursuant to the Court’s ECF filing system:
Counsel for Petitioner-Appellee:
Keith R. Hummel
CRAVATH, SWAINE & MOORE LLP
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
Telephone: (212) 474-1000
Facsimile: (212) 474-3700
khummel@cravath.com
James Lee (192301)

Enoch Liang (212324)
Joe Tuffaha (253723)
LTL ATTORNEYS LLC
300 South Grand Avenue, Suite 1400
Telephone: (212) 474-1000
Facsimile: (212) 474-3700
james.lee@ltlattorneys.com
enoch.liang@ltlattorneys.com
joe.tuffaha@ltlattorneys.com
19

Laura W. Brill
20

Nouvel, LLC v. Mondo Bongo, LLC, Et Al, 22-55737, No. 2 (9th Cir. Aug. 3, 2022)

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Case: 22-55737, 08/03/2022, ID: 12509143, DktEntry: 2-1, Page 1 of 29

CASE NO. 22-55737

UNITED STATES COURT OF APPEALS

MONDO BONGO, LLC, WILLIAM B. PITT, and

Appeal From the United States District Court,

EMERGENCY MOTION UNDER CIRCUIT RULE 27-3

RELIEF REQUESTED BY AUGUST 17, 2022

William Savitt (admission forthcoming) Laura W. Brill (195889)

Attorneys for Respondents-Appellants Mondo Bongo, LLC,

Pursuant to Federal Rule of Appellate Procedure 8(a)(2) and Circuit Rule

significant and irreparable harm to Appellants pending appeal.

CIRCUIT RULE 27-3 CERTIFICATE

The undersigned counsel, Laura W. Brill, certifies on behalf of Appellants as

I. Counsels’ Contact Information

Counsel for Appellee Nouvel, LLC can be reached as follows:

James Lee (192301)

Counsel for Appellants can be reached as follows:

Laura W. Brill (195889)

William Savitt (admission forthcoming)

II. Relief Sought in the District Court

This appeal concerns an application for discovery under 28 U.S.C. § 1782,

filed by Nouvel on January 7, 2022. Ex. 1 (App. for an Order Pursuant to 28

U.S.C. § 1782) (“App.”)). Following the grant of that application on an ex parte

subpoenas on Appellants. On March 17, 2022, Appellants moved to quash. Ex. 3

on May 20, 2022, Ex. 5 (Reply in Further Support of Mot. (“Reply”)).

Appellants’ motion to quash was referred to the Honorable Charles Eick,

(Objections to the R&R) (“R&R Objections”)), and Nouvel replied, Ex. 8

District Court rejected Appellants’ objections and denied Appellants’ motion to

stay pending appeal. Id. at 4.

III. Facts Showing Existence and Nature of the Emergency

On July 28, 2022, Nouvel’s counsel sent a letter to Appellants’ counsel

demanding that Appellants complete their production of documents responsive to

K. Hummel to Counsel to Appellants, July 8, 2022). An emergency stay is

of the disclosure of confidential and proprietary information belonging to Château

Grant is a former director, as well as information belong to Miraval Provence, in

from the release of this sensitive information to Appellee Nouvel — now

nominally controlled by competitor spirits business, Stoli Group — could not be

undone. In addition, release of this information would moot Appellants’ appeal,

order entered Aug. 2, 2018).

IV. Notification and Service of Opposing Counsel

be served with the filing by CM/ECF and electronic mail.

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, disclosure is hereby

Akebia Therapeutics, Inc. v. Fibrogen, Inc.,

All. for the Wild Rockies v. Cottrell,

Baxalta Inc. v. Genentech, Inc.,

Becker v. United States,

Berhardt v. Cnty. of Los Angeles,

Cryolife, Inc. v. Tenaxis Med., Inc.,

In re Accent Delight Int’l,

In re Cathode Ray Tube (CRT) Antitrust Litig.,

Intel Corp. v. Advanced Micro Devices, Inc.,

John Doe Agency v. John Doe Corp.,

Nikon Corp. v. GlobalFoundries U.S. Inc.,

Siemens AG v. W. Digital Corp.,

ZF Auto. US, Inc. v. Luxshare, Ltd.,

STATUTES AND RULES

28 U.S.C. § 1782 .............................................................................................. passim

This appeal from an order under 28 U.S.C. § 1782 centers on Angelina

Jolie’s unlawful sale of her ownership interest in Château Miraval, a French

company comprising a home and vineyard in the south of France. Château

limited liability companies controlled by Jolie and Appellant Brad Pitt,

respectively. In October 2021, Jolie sold Nouvel to Stoli Group — a competitor of

California state court, with further litigation pending in Luxembourg.