“International banking in South Florida has become so significant that Brickell Avenue was dubbed ‘Wall Street South’ by Forbes in 2015,” says David Schwartz, president and CEO of the Florida International Bankers Association. Florida Trend, 11/7/2019

Increasing numbers of people have connections with one country, but live and work in another, frequently owning property or investments in several countries. At the center of this global trend sits Florida, a magnet for foreign investors and a hub of international banking, finance and professional services.

Not surprisingly, Florida probate attorneys often find themselves drawn into international estate cases, be it because the decedent was hiding assets in this state, or some other information critical to a foreign estate proceeding is located in Florida, or because the location of the decedent’s domicile at death is contested and there are dueling probate proceedings running simultaneously here and abroad.

A fundamental challenge for parties and their counsel in all of these cases is how to uncover the evidence they suspect exists, but have yet to obtain. If the decedent owned property in Florida or was domiciled in Florida, the answer is simple. Commence a probate proceeding in Florida, then take advantage of all of the discovery tools generally available to litigants in any Florida civil case, which Probate Rule 5.080 tells us are also available to litigants in any Florida probate proceeding.

Section 1782:

If there’s no jurisdictional “hook” for a Florida probate proceeding, but critically important evidence is located in this state nonetheless, all is not lost. One of the lesser-known strategies to obtain U.S.-style discovery in aid of a foreign probate proceeding is 28 U.S.C. § 1782, known colloquially as “Section 1782″. This federal statute permits a party contemplating or involved in a foreign proceeding to seek documents and even depositions from its opponent or third parties located in the U.S.

Section 1782 can be used by parties involved in overseas inheritance litigation. For example, in Application of Esses, the court granted a section 1782 petition that sought discovery for use in a Hong Kong probate proceeding, in In re Application for Discovery Pursuant to 28 U.S.C. §1782, the court granted a section 1782 petition that sought discovery for use in an Italian probate proceeding, and in In re Pimenta, the court granted a section 1782 petition that sought discovery for use in a Brazilian probate proceeding.

Timing matters:

Section 1782 petitions are technically demanding federal proceedings, best left to specialists. But it’s the kind of tool all probate attorneys should at least be aware of. Why? Because timing matters. This tool is best used early in the process. If you wait until after you’ve been beaten up overseas to try your luck in a Florida courtroom, you’ve probably waited too long, as the petitioner in In re Abud Valech recently learned.

In re Abud Valech, 2020 WL 8919124 (S.D. Fla. December 31, 2020):

This case involved claims by the widow of a man reported to be “one of Ecuador’s richest and most powerful men” whose fortune included businesses, real estate holdings, and investments in Ecuador, Florida, Panama, and other jurisdictions. Despite living a “wealthy lifestyle during their marriage,” when husband died his surviving spouse found he basically had nothing titled in his name, which meant her spousal inheritance rights, referred to as “conjugal share rights” in Ecuador, were worthless.

Following her husband’s death, the widow initiated eight pre-suit discovery petitions in Ecuador. And in every single one of those cases widow’s discovery efforts went nowhere; they were all denied. In addition to her discovery petitions, the widow also commenced three separate proceedings “in Ecuador asserting her conjugal share rights.” According to widow’s Ecuador-law expert, in Ecuador “a lawsuit must be accompanied by all the evidence intended to be used.” Having gotten nowhere in her pre-suit discovery efforts, presumably her spousal-inheritance petitions lacked much, if any, evidentiary support, which again meant she lost every time. Against this backdrop widow decided to try her luck in Florida.

Not surprisingly, the fact that she’d been stymied at every turn in Ecuador was used to devastating effect against the widow once she filed her Section 1782 petition in Florida. The Florida court and defense counsel contesting the Section 1782 petition repeatedly made reference to widow’s prior setbacks in Ecuador.

Applicant has already filed eight unsuccessful evidentiary petitions in Ecuador and cannot use this Application as an “end run” to circumvent the decisions made by Ecuadorian judges to obtain the information. …

In addition to the Noboa Declaration, the Motion also relies on the declarations of Jorge G. Alvear Macias and Daniel Kuri Garcia. ECF Nos. [11-2], [11-3]. Alvear detailed the eight evidentiary requests and three complaints before Ecuadorian courts. ECF No. [11-2] at 65–80. In his conclusion, Alvear notes that despite Applicant’s dissatisfaction with the eleven court requests, she did not challenge any of the decisions with an appeal, a challenge which was available to her. ECF No. [11-2] at 79. Therefore, Alvear presumed that she “acquiesced in those judicial decisions that were adverse to her.” Id. …

The Movants argue that the discovery sought cannot be for use in a proceeding because there is no pending proceeding in Ecuador, and none is “reasonably contemplated.” ECF No. [11] at 14–15. Indeed, they state that “Applicant has unsuccessfully pursued eleven such proceedings in Ecuador”—including eight pre-trial petitions for evidence and three complaints—“all of which have been rejected or unsuccessful.” ECF No. [11] at 15. …

Here, despite eight pre-trial evidentiary petitions, Applicant has been unable to obtain information regarding the property, assets, and income owned and/or controlled by Mr. Anton. The information sought in the eight pre-trial evidentiary petitions is very similar to the information sought in this Application. … This Application is requesting similar information that was previously denied in Ecuador for both substantive and procedural reasons, and, therefore, this factor weighs against granting the Application.

There were other factors also weighing against the widow, as explained by the Florida court in its application of the  Intel factors” to this case. Bottom line, widow’s Section 1782 petition was denied.

Lesson learned?

Again, timing matters. Would this story have ended differently if widow had contacted a Florida probate attorney shortly after her husband died, who then recommended that she start by filing a Section 1782 petition in Florida prior to jumping into court in Ecuador, and widow had successfully obtained evidence in Florida helpful to her case in Ecuador? And then widow used the evidence uncovered in Florida to support her subsequent inheritance claims in Ecuador? Would this alternate sequence of events have changed the ultimate outcome? We’ll never know. This I do know: getting hammered overseas before you show up in Florida to file your Section 1782 petition is a pretty good way to guarantee you’re going to lose in Florida too.