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In The United States Court of Appeals For The Ninth Circuit: Attorneys For Petitioner-Appellee Nouvel, LLC

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The case involves a dispute between Nouvel and Mondo Bongo/William Pitt/Warren Grant related to subpoenas issued in connection with legal proceedings in France and Luxembourg. Nouvel is opposing a request for an emergency stay of the district court's order declining to quash the subpoenas.

The case appears to involve commercial disputes related to Chateau Miraval and governance issues. Nouvel issued subpoenas to Mondo Bongo/Pitt/Grant seeking documents for use in legal proceedings in France and Luxembourg.

Nouvel argues that the district court did not abuse its discretion in declining to conclusively determine disputed issues of foreign law and did not fail to address international comity concerns. Nouvel also argues it will suffer irreparable harm without the documents and the public interest favors disclosure.

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Case No. 22-55737

IN THE 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


for the Central District of California
Case No. 2:22-mc-00004-MCS-CFE
The Honorable Mark C. Scarsi, United States District Judge

APPELLEES’ OPPOSITION TO APPELLANTS’ EMERGENCY MOTION


FOR STAY PENDING APPEAL
Joedat H. Tuffaha (Bar No. 253723) Keith Hummel
Prashanth Chennakesavan CRAVATH, SWAINE & MOORE, LLP
(Bar No. 284022) Worldwide Plaza
LTL ATTORNEYS LLP 825 Eighth Avenue
300 South Grand Avenue New York, NY 10019
Suite 1400 Telephone: (212) 474-1000
Los Angeles, CA 90071 Facsimile: (212) 474-3700
Telephone: (213) 612-8900
Facsimile: (213) 612-3773

Attorneys for Petitioner-Appellee Nouvel, LLC

August 10, 2022


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CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, Appellee Nouvel,

LLC states the following: Nouvel, LLC is a wholly owned subsidiary of Tenute

del Mondo B.V. Tenute del Mondo is a wholly owned subsidiary of Stoli Group

Holding Limited. No publicly held corporation owns 10% or more of the stock of

Stoli Group Holding Limited.


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TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ................................................................................... iii

INTRODUCTION .....................................................................................................1

RELEVANT BACKGROUND ................................................................................. 3

HISTORY OF THE PROCEEDINGS ....................................................................... 5

LEGAL STANDARD ................................................................................................6

ARGUMENT .............................................................................................................7

I. The Pitt Parties Are Not Likely To Succeed on the Merits. ................. 7

A. The District Court Did Not Abuse Its Discretion in


Declining To Conclusively Determine Certain
Disputed Issues of Foreign Law. ................................................ 7

B. The District Court Did Not Fail To Address Any


International Comity Concerns Raised by the
Subpoenas. ................................................................................11

II. The Pitt Parties Will Not Be Irreparably Harmed Absent a


Stay. .....................................................................................................14

III. Nouvel Will Be Substantially Injured by a Stay. ................................18

IV. The Public Interest Does Not Favor a Stay. ........................................19

CONCLUSION ........................................................................................................20

ii
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TABLE OF AUTHORITIES

Page(s)
Cases

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


292 F.3d 664 (9th Cir. 2002) ................................................................................8

AIS GmbH Aachen Innovative Sols. v. Thoratec LLC,


762 F. App’x 447 (9th Cir. 2019) .................................................................6, 8, 9

Akebia Therapeutics, Inc. v. FibroGen, Inc.,


793 F.3d 1108 (9th Cir. 2015) ..........................................................................7, 9

Becker v. U.S.,
451 U.S. 1306 (1981) ..........................................................................................18
Bernhardt v. Cnty. of Los Angeles,
279 F.3d 862 (9th Cir. 2002) ..............................................................................17
Church of Scientology of California v. U.S.,
506 U.S. 9 (1992) ................................................................................................16

In re Application of Hornbeam Corp.,


No. 14-mc-424, 2017 WL 2241522 (S.D.N.Y. May 22, 2017)..........................20
In re Application of HRC-Hainan Holding Co. LLC v. Yihan Hu,
No. 20-15371 (9th Cir. Mar. 30, 2020) (order) .................................................... 6

HRC-Hainan Holding Co., LLC v. Yihan Hu, No. 19-MC-80277-TSH,


2020 WL 1274877 (N.D. Cal. Mar. 17, 2020 ...............................................15, 16

In re Application of Procter & Gamble Co.,


334 F. Supp. 2d 1112 (E.D. Wis. 2004) .............................................................19
In re Burrell,
415 F.3d 994 (9th Cir. 2005) ..............................................................................16

In re Gorsoan Ltd.,
No. 18-mc-431, 2020 WL 4194822 (S.D.N.Y. Jul. 21, 2020) ...........................20

iii
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In re Gushlak,
No. 11-mc-0218, 2012 WL 2564466 (E.D.N.Y. Jan. 30, 2012) ........................15

In re Gyptec S.A.,
No. 16-cv-20810, 2017 WL 10978838 (S.D. Fla. Nov. 2, 2017) .......................15

In re Microsoft Corp.,
428 F. Supp. 2d 188 (S.D.N.Y. 2006) ................................................................13

In re O’Keeffe,
646 F. App’x 263 (3d Cir. 2016) .......................................................................... 9

In re OOO Promnefstroy,
No. M 19-99, 2009 WL 3335608 (S.D.N.Y. Oct. 15, 2009) ..............................13

In re Request For Jud. Assistance from Seoul Dist. Crim. Ct.,


555 F.2d 720 (9th Cir. 1977) ............................................................................8, 9
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) ..........................................................................................17
JSC MCC EuroChem v. Chauhan,
No. 18-5890, 2018 WL 9650037 (6th Cir. Sept. 14, 2018)................................15
Khrapunov v. Prosyankin,
931 F.3d 922 (9th Cir. 2019) ............................................................................8, 9
Lopez v. Heckler,
713 F.2d 1432 (9th Cir. 1983) .............................................................................. 6
Mangouras v. Squire Patton Boggs,
980 F.3d 88 (2d Cir. 2020) .................................................................................16

Mees v. Buiter,
793 F.3d 291 (2d Cir. 2015) .............................................................................8, 9
Nat. Res. Def. Council, Inc. v. Winter,
502 F.3d 859 (9th Cir. 2007) ..............................................................................17

iv
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Nat’l Archives & Records Admin. v. Favish,


541 U.S. 157 (2004) ............................................................................................17

Nken v. Holder,
556 U.S. 418 (2009) ........................................................................................6, 16

Rothe v. Aballí,
No. 20-12543, 2021 WL 4429814 (11th Cir. Sept. 27, 2021)............................16

Scrum All., Inc. v. Scrum, Inc.,


No. 4:20-cv-227, 2021 WL 720703 (E.D. Tex. Feb. 24, 2021) .........................19

Virginian Ry. Co. v. United States,


272 U.S. 658 (1926) ..............................................................................................6

Wisdom Imp. Sales Co. v. Labatt Brewing Co.,


339 F.3d 101 (2d Cir. 2003) ...............................................................................19
ZF Auto, U.S., Inc. v. Luxshare, Ltd.,
142 S. Ct. 2078 (2022) ........................................................................................13
Statutes
28 U.S.C. § 1782 ...............................................................................................passim

v
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Nouvel respectfully submits this opposition to the emergency motion of

Appellants Mondo Bongo, LLC, William B. Pitt, and Warren Grant (collectively,

the “Pitt Parties”) for a stay pending appeal of the District Court’s July 22, 2022

order denying the Pitt Parties’ motion to vacate a January 12, 2022 order

authorizing discovery under 28 U.S.C. § 1782 and to quash related subpoenas.

INTRODUCTION

The Pitt Parties begin by misrepresenting the basis of this § 1782 action.

This action has its roots in Pitt’s ongoing illegal conduct against his former wife,

Angelina Jolie, and her former company, Nouvel, since Jolie filed for divorce in

2016. Pitt has cut Jolie and Nouvel out of any meaningful participation in their

jointly owned Luxembourg company, Quimicum, and has stripped assets from

Quimicum’s wholly owned subsidiary, the French wine company Chateau Miraval.

Although Pitt’s illegal conduct continued after Jolie sold Nouvel to a

subsidiary of the Stoli Group in 2021, Nouvel does not seek discovery here for use

in Pitt’s separate lawsuit—filed in California state court after and apparently in

retaliation for Nouvel’s § 1782 petition—seeking to set aside that sale. Instead,

Nouvel seeks discovery to defend itself against Pitt’s continuing, baseless legal

attacks on it in Luxembourg and to seek legal redress in France for the

Pitt-masterminded attempts to misappropriate Chateau Miraval’s assets.

No basis exists for a stay. The Pitt Parties do not dispute that the statutory
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factors set forth in 28 U.S.C. § 1782 are met in this case. Their argument that the

District Court abused its discretion in applying the discretionary Intel factors fails

as a matter of law. Under this Court’s precedents, the District Court was not

required to fully resolve disputed issues of foreign law in applying those factors.

Nevertheless, the District Court did consider the questions of Luxembourgish and

French law presented by the parties and properly concluded that foreign law does

not prohibit the requested discovery. The Pitt Parties cannot prevail on the merits.

Nor will the Pitt Parties suffer any irreparable harm in responding to routine

discovery requests. The District Court has already prohibited Nouvel from using

the documents other than for purposes of the foreign litigations. By contrast, the

evidentiary phase of the Luxembourg proceeding is occurring now, and could

conclude at any time at the discretion of the Luxembourgish judge. Should Pitt be

permitted to run out the clock on the evidence-gathering phase in Luxembourg,

Nouvel will be irreparably harmed. And Nouvel must act expeditiously in France

to remedy the ongoing harm Pitt and his allies are inflicting on Chateau Miraval,

including giving away its valuable trademarks for no compensation. Moreover,

declining to issue a stay does not moot a § 1782 appeal because the Court can

order the return or destruction of documents if it ultimately grants the appeal.

Thus, all of the relevant factors weigh in favor of denying the Pitt Parties’

emergency request for a stay.

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RELEVANT BACKGROUND

The Pitt Parties provide no factual support for their claim of irreparable

harm. In lieu of evidentiary support, the Pitt Parties focus much of their

“background” on repeating irrelevant and often false allegations Pitt makes in his

complaint challenging Jolie’s lawful sale of Nouvel. Nouvel here provides a

summary of the facts that are actually relevant to this § 1782 appeal.

The Luxembourg Action

When Mondo Bongo (owned by Pitt) and Nouvel (owned by Jolie) acquired

Quimicum in 2008, they split ownership 60–40. In 2013, Pitt voluntarily caused

Mondo Bongo to transfer 10% of the outstanding shares of Quimicum to Nouvel

(the “2013 Share Transfer”), making Nouvel and Mondo Bongo equal 50–50

owners of Quimicum. In 2021, Pitt caused Mondo Bongo to sue Nouvel and

Quimicum in Luxembourg (the “Luxembourg Action”) in an effort to annul the

2013 Share Transfer on the basis that the eight-year-old transaction lacked

“cause”—in civil law, a benefit or goal. (Ex. 1 at 4, 12; Ex. 2 at 20–21.)

As discussed below, Pitt’s objective is to take de jure control over

Quimicum to hide and legitimize his usurpation of corporate authority and

appropriation of the business of Chateau Miraval. In this § 1782 action, Nouvel

seeks documents to defend itself in the Luxembourg Action, including documents

concerning the reason for and any benefits derived from the 2013 Share Transfer,

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which Nouvel will use to show that the transfer was supported by “cause”. (Exs. 3

at 31; 4 at 41; 5 at 51, Request Nos. 1–2.)

The Contemplated French Action

Control of Quimicum is critical because it owns and controls Chateau

Miraval and, by extension, its incredibly valuable wine business, which includes a

world-class rosé. Unable legally to control Chateau Miraval through Quimicum

(because Nouvel owns 50%), Pitt masterminded a successful plan to freeze out

Jolie and Nouvel, and obtain de facto control—which he enjoys to this day.

Pitt imposed a shareholder deadlock at Quimicum to prevent Jolie and

Nouvel from accessing information about or supervising Chateau Miraval. (Ex. 6

at 57–59.) Ironically, while accusing the Stoli Group of plotting a “hostile

takeover” (Ex. 7 at 89), Pitt has used the deadlock he engineered to take full

control of Chateau Miraval. Chateau Miraval’s directors appear to take

management orders directly from Pitt, and they even attempted to appoint Pitt’s

agent—Appellant Warren Grant—as a director of Chateau Miraval. (Ex. 8 at 111,

113). That effort failed, but Pitt still runs Chateau Miraval as if it were his

personal fiefdom, pugnaciously refusing all reasonable efforts to resolve the

deadlock at Quimicum and blocking Nouvel’s efforts to share in Chateau Miraval’s

governance on an equal footing with the other 50% owner, Pitt’s wholly owned

company, Appellant Mondo Bongo. (Exs. 9; 6 at 57–59; 10; 11 at 139–142.)

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Pitt’s usurpation of control over Chateau Miraval has had dire consequences.

Pitt and his directors appear to have wasted the Chateau’s assets, spending millions

on renovations that lack a business function, such as a €1.1 million swimming

pool. (Ex. 12 ¶ 9.) More troubling, since at least 2017, Chateau Miraval’s

directors, without authorization, have permitted a different French entity, Miraval

Provence, to register as its own Chateau Miraval’s trademarks—among the

Chateau’s most valuable assets—apparently for no compensation. (Id. ¶¶ 7–8.)

To mitigate and remedy this situation, Nouvel plans to file an action in

France against, among others, Chateau Miraval’s directors and Miraval Provence

to restore proper governance and to redress harm to shareholders (the “French

Action”). Here, Nouvel seeks documents through § 1782 concerning the assets

and supervision of Chateau Miraval and Miraval Provence for use in the French

Action. (Exs. 3 at 31–33; 4 at 41–43; 5 at 51–53, Request Nos. 3–11.)

HISTORY OF THE PROCEEDINGS

Magistrate Judge Eick granted Nouvel’s § 1782 application on January 12,

2022. (Ex. 13.) On March 17, 2022, the Pitt Parties moved to vacate the order and

quash the subpoenas issued thereunder. (Ex. 7.) Magistrate Judge Eick

recommended denying the Pitt Parties’ motion on June 8, 2022. (Ex. 14.)

The Pitt Parties filed Objections to the Magistrate Judge’s Report &

Recommendation (“R&R”) on June 28, 2022, and therein requested that any order

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be stayed pending appeal. (Ex. 15.) The District Court fully adopted the R&R on

July 22, 2022, after reviewing it de novo. (Ex. 16.) The District Court denied the

Pitt Parties’ request for a stay, both on the merits and because the Pitt Parties had

inappropriately requested affirmative relief in their Objections. (Id. at 3–4.)

LEGAL STANDARD

An appellate court reviews a district court’s denial of a stay pending appeal

for abuse of discretion, Lopez v. Heckler, 713 F.2d 1432, 1435–36 (9th Cir. 1983),

as it does a district court’s award of § 1782 discovery, AIS GmbH Aachen

Innovative Sols. v. Thoratec LLC, 762 F. App’x 447, 449 (9th Cir. 2019).

In deciding a motion to stay pending appeal, courts consider four factors:

“(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.” Nken v.

Holder, 556 U.S. 418, 434 (2009) (citation omitted). “A stay is not a matter of

right, even if irreparable injury might otherwise result to the appellant. It is an

exercise of judicial discretion.” Virginian Ry. Co. v. United States, 272 U.S. 658,

672–73 (1926) (citation omitted). This Court does not stay all § 1782 appeals

automatically. See In Re Application of HRC-Hainan Holding Co. LLC v. Yihan

Hu, No. 20-15371 (9th Cir. Mar. 30, 2020) (order).

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ARGUMENT

I. The Pitt Parties Are Not Likely To Succeed on the Merits.

A. The District Court Did Not Abuse Its Discretion in Declining To


Conclusively Determine Certain Disputed Issues of Foreign Law.

The Pitt Parties argue that they are likely to succeed on the merits because,

they maintain, Intel Corp. v. Advanced Micro Devices, Inc. required the District

Court to make conclusive determinations about disputed issues of foreign law. 542

U.S. 241 (2004); (Mot. 9–10.) This is not the correct standard. This Court has

held that district courts do not abuse their discretion by declining to resolve

disputes about the content of foreign law in weighing the Intel factors.

Akebia Therapeutics, Inc. v. FibroGen, Inc. is directly on point. 793 F.3d

1108 (9th Cir. 2015). There, the parties submitted competing affidavits about the

admissibility of evidence under foreign law (Exs. 17 at 196-99; 18; 19 at 223-24;

20), and the district court expressly declined to resolve the dispute, allowing

discovery. (Ex. 21 at 266-68.) The appellant argued that the district court erred in

concluding that it was “not required and in fact declines to undertake the extensive

efforts required to determine what types of evidence the [foreign tribunals] would

or would not consider”. (Id.; Ex. 22 at 295.) This Court rejected that argument,

holding that the district court had not “abused its discretion by giving ‘short shrift’

to the nonexclusive [Intel] factors” because “[t]he district court was not required to

address explicitly every [Intel] factor or argument . . . .” 793 F.3d at 1112.


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In AIS GmbH Aachen Innovative Solutions. v. Thoratec LLC, the appellant

argued that because the court had refused to accept its evidence of foreign law and

had admitted that it was “unable to judge which side’s telling is more accurate”

about the admissibility of evidence in Germany (Ex. 23 at 330, 332−36), “there

was a wholesale failure to consider relevant evidence and to apply the controlling

test set forth” in Intel. (Id. at 338−39.) This Court rejected that argument, and

upheld the grant of § 1782 discovery. 762 F. App’x. at 449.

These decisions reflect this Court’s longstanding guidance that “federal

courts, in responding to [§ 1782] requests, should not feel obliged to involve

themselves in technical questions of foreign law”. In re Request For Jud.

Assistance from Seoul Dist. Crim. Ct., 555 F.2d 720, 723 (9th Cir. 1977). That

makes sense because § 1782’s purpose is to facilitate discovery in aid of foreign

litigation, not to erect obstacles to such discovery. See Advanced Micro Devices,

Inc. v. Intel Corp., 292 F.3d 664, 669 (9th Cir. 2002), aff’d, 542 U.S. 241 (2004).

Requiring district courts to conduct mini-trials on all disputed issues of foreign law

would unnecessarily consume judicial resources and frustrate that purpose. See

Mees v. Buiter, 793 F.3d 291, 299 (2d Cir. 2015).

The Pitt Parties misrepresent the holding of their primary authority,

Khrapunov v. Prosyankin, 931 F.3d 922 (9th Cir. 2019). Khrapunov involved a

situation in which the foreign proceedings were “finally decided” against the

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§ 1782 applicant—and his request to appeal that loss was denied—while the

§ 1782 ruling was on appeal to this Court. Id. at 924. As a result of that

development, “the second statutory requirement—that the discovery be for use in a

foreign ‘proceeding’—[wa]s called into doubt”. Id. at 925. This Court remanded

so that the district court could engage in “additional fact-finding” with respect to

the Petitioner’s argument that the statutory requirement was satisfied based on the

possibility of “reopening” the foreign proceedings. Id. at 925–26.

That some district courts may have fully resolved issues of foreign law in

weighing the Intel factors does not change the analysis. This Court’s precedents

make clear that a district court does not abuse its discretion in declining to resolve

disputed issues of foreign law. See Akebia Therapeutics, 793 F.3d 1108; AIS

GmbH Aachen Innovative Sols., 762 F. App’x 447; In re Request For Jud.

Assistance from Seoul Dist. Crim. Ct., 555 F.2d 720. Other Circuits are in accord.

See Mees, 793 F.3d at 298–99 (rejecting “speculative forays into legal territories

unfamiliar to federal judges”) (citation omitted); In re O’Keeffe, 646 F. App’x 263,

267 (3d Cir. 2016) (“We have never required district courts to determine whether

particular evidence would be admissible in a foreign court.”).

In any event, contrary to the Pitt Parties’ repeated assertions to the contrary

(Mot. 2, 8–12), the District Court did make findings about foreign law. With

respect to the first Intel factor, the District Court did not “discard[] the Pitt Parties’

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evidence demonstrating that Luxembourg would permit the discovery” sought.

(Mot. 10.) Instead, the District Court rejected the Pitt Parties’ position “based on

the parties’ submissions of expert testimony”. (Ex. 16 at 188.) Similarly, in

holding that it was doubtful the discovery sought was available in Luxembourg, the

Magistrate Judge analyzed and even quoted from the declaration of the Pitt Parties’

expert, finding that it “underscor[ed] this doubt”. (Ex. 14 at 159 n.5.) And with

respect to the third Intel factor, after considering the parties’ evidence, the District

Court expressly found that “the discovery sought here does not appear to be

prohibited under Luxembourgish and French court procedures”. (Ex. 16 at 189.)

That the District Court credited Nouvel’s expert evidence is hardly

surprising. Nouvel submitted declarations from two independent, well-respected

jurists: the former president of the Luxembourg Supreme Court and a tenured

professor at France’s top law school. (Exs. 24 ¶ 1; 25 ¶ 1.) In contrast, the Pitt

Parties submitted declarations solely from their own foreign counsel and, even

then, they did not submit anything from their French counsel to refute the

discussion of French law presented in Nouvel’s declaration from the French law

professor.

The Pitt Parties’ argument on the third Intel factor that a French court “held

that Nouvel was prohibited from accessing Château Miraval’s” documents

“because Nouvel is only an indirect shareholder of Château Miraval” (Mot. 11) is

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highly misleading. After Nouvel demonstrated, in accordance with applicable

French case law, that an indirect shareholder, like Nouvel, has an interest in

obtaining discovery in the event of the direct shareholder’s inaction, the very same

French court reversed itself and granted Nouvel’s seizure application. (Ex. 26 at

415-19 (proposed order granted Feb. 10, 2022).)

Because this Court has rejected the Pitt Parties’ argument that a district court

abuses its discretion in declining to make findings of foreign law in an Intel

analysis and because the District Court did make findings on foreign law, the Pitt

Parties have no chance of succeeding on the merits.

B. The District Court Did Not Fail To Address Any International


Comity Concerns Raised by the Subpoenas.

The Pitt Parties’ argument that the District Court erred by failing to consider

international comity is completely unsupported and contrary to the record.

To start, the Pitt Parties do not claim the discovery would raise any comity

concerns with respect to the Luxembourg Action. Nor could they, because, as the

record shows, and the District Court found, the Luxembourg court will receive

evidence produced under a § 1782 subpoena. (Ex. 16 at 188−89.)

Likewise, no comity concerns arise with respect to the French Action. The

District Court expressly found that “the discovery sought here does not appear to

be prohibited under [] French court procedures”. (Ex. 16 at 189.) For support, the

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District Court cited Nouvel’s French law expert, who declared that “there is

nothing inconsistent about simultaneously seeking article 145 discovery in France

and [] § 1782 discovery in the United States, even on the same topics, given the

territorial restriction to article 145 CPC”. (Ex. 25 ¶ 39.) Indeed, the discovery

sought by Nouvel is especially unlikely to raise comity concerns because the

requests at issue here concern different targets, different documents, and different

time periods than the requests in France. (Compare Exs. 3−5 with Ex. 26.)

Moreover, the two categories of documents with which the Pitt Parties take

specific issue raise no international comity concerns. First are what the Pitt Parties

characterize as requests for documents that the “French courts are currently

reviewing”. (Mot. 13.) At most, these documents raise questions of

discoverability in the foreign jurisdiction. But Intel itself cautions that comity and

parity concerns “do not permit our insertion of a generally applicable foreign-

discoverability rule”. See 542 U.S. at 261. Second are documents that the Pitt

Parties contend the “French courts have . . . prohibited [Nouvel] from accessing”.

(Mot. 13.) But, as noted above, the French court later reversed itself and granted

Nouvel’s request to seize documents. 1 (See Section I.A, supra.)

1
The Pitt Parties’ suggestion that there is some substantive principle of
French law prohibiting indirect shareholders from obtaining documents pertaining
to their investments is undercut by the fact that the Pitt Parties do not dispute
having access to the documents—despite being indirect shareholders themselves.
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Although the Pitt Parties quote a single line from the Supreme Court’s recent

opinion in ZF Auto, U.S., Inc. v. Luxshare, Ltd. noting that the “animating purpose

of § 1782 is comity”, 142 S. Ct. 2078, 2088 (2022), their argument misses the

mark. The quoted dicta from ZF Auto—a case concerning whether private arbitral

bodies constitute “foreign or international tribunals” within the meaning of

§ 1782—does not disturb or contradict the Court’s prior analysis of the statute’s

animating purpose in Intel. As the Intel Court framed these comity concerns,

§ 1782(a)’s “objective [is] to assist foreign tribunals in obtaining relevant

information that the tribunals may find useful but, for reasons having no bearing on

international comity, they cannot obtain under their own laws”. 542 U.S. at 262.

The Pitt Parties’ other cited cases are distinguishable. In re OOO

Promnefstroy involved a § 1782 application filed for the exact same information

that had been unsuccessfully sought in a Dutch court. No. M 19-99, 2009 WL

3335608 at *9 (S.D.N.Y. Oct. 15, 2009). A Dutch appellate court had weighed the

interests of both parties and concluded unambiguously that disclosure was

unwarranted. Id. at *9, *3. Here, there has been no such ruling. And In re

Microsoft Corp. involved a request for the exact same documents, even though the

European Commission had provided a letter to counsel to the § 1782 target stating

that the applicant was seeking to circumvent its rules. 428 F. Supp. 2d 188, 191–

92 (S.D.N.Y. 2006).

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The Pitt Parties have failed to identify any relevant comity concerns.

II. The Pitt Parties Will Not Be Irreparably Harmed Absent a Stay.

The Pitt Parties’ contention that they will be harmed from the disclosure of

allegedly confidential and proprietary information to Nouvel absent a stay lacks

any factual support whatsoever. Indeed, their only “evidence” of harm are their

own allegations in a complaint from a different case that the Stoli Group, an

affiliate of which owns Nouvel, is an “aggressive competitor spirits business”

trying to take control of Chateau Miraval. (Mot. 4, 14–15.) The Pitt Parties have

failed to provide any evidence of this alleged harm or that they possess any

commercially sensitive documents. As Magistrate Judge Eick noted, the Pitt

Parties’ “conclusory assertion that the documents contain ‘commercial sensitive,

confidential information’” is insufficient. (Ex. 14 at 162 (quoting Nguyen v. Lotus

by Johnny Dung, Inc., 2019 WL 4570032, at *4 (C.D. Cal. Apr. 12, 2019)).)

Nor do the Pitt Parties’ allegations make sense. Nouvel’s § 1782 requests

for use in the Luxembourg Actions concern the validity of the 2013 Share

Transfer. The Pitt Parties make no effort to explain why such materials would be

commercially sensitive. As to the French Action, the Pitt Parties fail to explain

why Pitt, his company Mondo Bongo, or his agent Grant are entitled to have

Chateau Miraval’s commercially sensitive information, whereas Nouvel, Chateau

Miraval’s other indirect 50% owner, is not. In a quintessential instance of saying

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the quiet part out loud, Pitt acknowledges his true fear—that the information

“would allow Stoli to conduct an indirect audit” of his gross mismanagement of the

enterprise. (Mot. 5.) He is almost right—the documents would actually allow

Nouvel to seek redress in France for Pitt and his allies’ mismanagement.

The Pitt Parties ignore that the District Court entered a protective order

“restricting the § 1782 discovery to be used for the purposes of the Luxembourgish

and French proceedings only”. (Ex. 16 at 189.) Courts have declined to grant

stays when an appropriate protective order is in place. See, e.g., HRC-Hainan

Holding Co., LLC v. Yihan Hu, No. 19-mc-80277, 2020 WL 1274877, at *5 (N.D.

Cal. Mar. 17, 2020); JSC MCC EuroChem v. Chauhan, No. 18-5890, 2018 WL

9650037, at *2 (6th Cir. Sept. 14, 2018). And documents filed in Luxembourg and

France are not publicly available (Exs. 24 ¶ 29; 25 ¶ 49), further limiting any harm.

The Pitt Parties’ argument that a stay is warranted because “the proverbial

bell cannot be unrung” (Mot. 15) is misplaced. “[R]esponding to discovery during

a pending appeal is an insubstantial harm in the context of 1782.” In re Gyptec

S.A., No. 16-cv-20810, 2017 WL 10978838, at *1 (S.D. Fla. Nov. 2, 2017); see

also In re Gushlak, No. 11-mc-0218, 2012 WL 2564466, at *7 (E.D.N.Y. Jan. 30,

2012) (“[T]he compelled production of non-privileged discovery material, standing

alone, does not constitute irreparable injury warranting a stay pending appeal.”).

“The mere fact that information, once disclosed, cannot be ‘undisclosed’ is

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therefore not enough by itself to warrant a finding of irreparable harm.” HRC-

Hainan, 2020 WL 1274877, at *5. That “is true in most, if not all, Section 1782

cases (not to mention ordinary discovery orders)”. Id. Under the Pitt Parties’

logic, a stay would be a matter of right in any § 1782 appeal, which is not the

standard. See Nken, 556 U.S. at 427 (a stay “is not a matter of right, even if

irreparable injury might otherwise result” (citation omitted)).

The Pitt Parties’ argument that its appeal will become moot absent a stay

also fails. “The test for mootness of an appeal is whether the appellate court can

give the appellant any effective relief in the event that it decides the matter on the

merits in his favor.” In re Burrell, 415 F.3d 994, 998 (9th Cir. 2005) (emphasis

added). A producing party retains a concrete interest sufficient to avoid mootness

on appeal. Even when it is “too late [] to provide a fully satisfactory remedy”,

appellate courts may still “effectuate a partial remedy” by ordering the return or

destruction of produced materials. See Church of Scientology of California v. U.S.,

506 U.S. 9, 12–13 (1992). Courts have applied this principle in § 1782 actions.

See, e.g., Rothe v. Aballí, No. 20-12543, 2021 WL 4429814, at *2 (11th Cir. Sept.

27, 2021) (appeal of § 1782 petition was not moot because “the return of private

documents, like the documents requested by [petitioner], would provide some

meaningful relief” (citing Church of Scientology, 506 U.S. at 12–13)); see also

Mangouras v. Squire Patton Boggs, 980 F.3d 88, 96 (2d Cir. 2020) (“[I]f the

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discovery was improvidently granted, this Court is positioned to grant meaningful

relief by ordering that the documents be returned or destroyed.”). 2

Even if the Pitt Parties can demonstrate some measure of irreparable harm,

no stay should issue given that they will fail on the merits. See Nat. Res. Def.

Council, Inc. v. Winter, 502 F.3d 859, 862 (9th Cir. 2007) (“[T]he required degree

of irreparable harm increases as the probability of success decreases.”).

The Pitt Parties, citing two unpublished orders, argue that this Court has

recognized that the possibility of an appeal becoming moot constitutes irreparable

harm. (Mot. 8, 14.) But each of those two-page orders simply granted a stay and

referred to precedents without any detailed legal analysis. Neither made a finding

concerning likelihood of success on the merits, and neither stands for the

proposition that where, as here, a § 1782 appellant is almost certain to lose on the

merits, the appellant is entitled to a stay as a matter of right.

The Pitt Parties’ other cases are distinguishable. John Doe Agency v. John

Doe Corp. concerns a Freedom of Information Act request, 488 U.S. 1306 (1989),

so unlike here a protective order limiting disclosure was impossible. See Nat’l

2
The Pitt Parties’ reliance on Bernhardt v. Cnty. of Los Angeles is
misplaced. Bernhardt states that a request for prospective relief becomes moot
“[w]here the activities sought to be enjoined already have occurred, and the
appellate courts cannot undo what has already been done”. Bernhardt, 279 F.3d
862, 871 (9th Cir. 2002). That is not the case here.
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Archives & Records Admin. v. Favish, 541 U.S. 157, 171 (2004). Becker v. U.S.

stayed the IRS’s seizure of an income-generating asset, not the production of

records. See 451 U.S. 1306, 1310 (1981). Neither situation applies here.

III. Nouvel Will Be Substantially Injured by a Stay.

Although the Pitt Parties acknowledge that “a § 1782 applicant may incur

injury if it does not receive discovery ‘until after expiration of [] deadlines in the

foreign proceeding” (Mot. 15 (citing Nikon Corp. v. GlobalFoundries U.S. Inc.,

2017 WL 4865549, at *3 (N.D. Cal. Oct. 26, 2017))), they misrepresent the state of

the Luxembourg Action. In Luxembourg, the investigation and gathering of

evidence is overseen by the presiding judge, who “may at any time decide that the

investigation phase is complete [and] the time for submission of evidence is over”.

(Mailliet Decl. ¶ 7; Ex. 27 at 423-24, Ex. 28.) Pitt and Mondo Bongo filed the

Luxembourg Action nearly a year ago, and the evidentiary phase has been

proceeding apace. When the presiding judge decides that she has sufficient

evidence to conclude the investigation, she may close the window to submit

evidence and proceed to an oral hearing. If that happens before this appeal is

resolved—and it may happen in the coming months (Mailliet Decl. ¶ 8)—Nouvel

will be unable to submit evidence directly relevant to one of the central issues in

the case (id. at ¶ 9). The Pitt Parties’ arguments to the contrary (Mot. 15) ignore

the nature of Luxembourg civil procedure. (Mailliet Decl. ¶¶ 6−7.)

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In France, Nouvel is suffering real, continuing harm from the actions of

French parties who are failing to adhere to proper governance at Chateau Miraval

and enabling Pitt to waste Chateau Miraval’s profits and loot it of its most valuable

assets. Chateau Miraval’s directors have already allowed another entity to register

its trademarks for no consideration (Ex. 12 ¶¶ 7-9), and there is no telling what

further damage they may do if Nouvel cannot immediately act to hold them to

account. Nouvel must commence the French Action as quickly as possible to try to

restore proper governance and to mitigate ongoing commercial harm to Chateau

Miraval and, indirectly, itself. See Scrum All., Inc. v. Scrum, Inc., No. 4:20-cv-

227, 2021 WL 720703, at *2 (E.D. Tex. Feb. 24, 2021) (finding “misappropriation

of property and illegal business practices” to constitute substantial injury); Wisdom

Imp. Sales Co. v. Labatt Brewing Co., 339 F.3d 101, 114–15 (2d Cir. 2003)

(“Conduct that unnecessarily frustrates efforts [] to participate in the management

of a company may also constitute irreparable harm.”)

IV. The Public Interest Does Not Favor a Stay.

The public interest weighs against granting a stay. Immediate enforcement

of Nouvel’s subpoenas serves the interests of international comity by furthering the

reciprocal truth-seeking function of domestic and international tribunals, and

further serves the public interest in justice, fair play and full disclosure. See, e.g.,

In re Application of Procter & Gamble Co., 334 F. Supp. 2d 1112, 1118 (E.D. Wis.

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2004) (“[T]he public interest favors allowing the discovery because doing so

furthers the search for the truth in foreign actions . . .”); In re Application of

Hornbeam Corp., No. 14-mc-424, 2017 WL 2241522, at *2 (S.D.N.Y. May 22,

2017) (denying stay pending appeal, noting denial served “public interests in

justice, fair play, and full disclosure” and “the truth in foreign actions”) (citing In

re Application of Chevron Corp., 709 F. Supp. 2d 283, 310 (S.D.N.Y. 2010)).

The Pitt Parties again focus only on France, thereby conceding that no public

interest exists in delaying discovery intended for use in the Luxembourg Action.

With respect to the French Action, the Pitt Parties’ conclusory public interest

analysis rests on a misreading of In re Gorsoan Ltd.. Gorsoan involved a credible

Fifth Amendment challenge to a discovery order; the Magistrate held “the public

interest in: (i) protecting [] constitutional rights . . . and (ii) preserving judicial

resources . . . outweighs the general interest in comity between the United States

and foreign tribunals.” No. 18-mc-431, 2020 WL 4194822, at *8 (S.D.N.Y. Jul.

21, 2020). The Pitt Parties identify no such issue of constitutional significance.

CONCLUSION

Based on the foregoing, Nouvel respectfully requests this Court DENY the

Pitt Parties’ Emergency Motion to Stay. If, however, this Court chooses to grant a

stay, Nouvel requests that the Court expedite the briefing schedule and argument

for this appeal and prohibit any requests for extensions of time.

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DATED: August 10, 2022 Respectfully submitted,

s/ Keith R. Hummel

Attorneys for Petitioner-Appellee

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CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing opposition complies with the type-

volume limitation of Federal Rule of Appellate Procedure 27 as it contains 4,958

words and page limitation of Ninth Circuit Rule 27-1 as it does not exceed 20

pages. This opposition complies with the typeface and type style requirements of

Federal Rule of Appellate Procedure 27 as this brief has been accurately formatted

proportionately using Word 14-point Times New Roman typeface.

DATED: August 10, 2022 Respectfully submitted,

/s/ Keith R. Hummel

Attorneys for Petitioner-Appellee

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