Case 1:12-cv-20229-PAS Document 36 Entered on FLSD Docket 11/08/2012 Page 1 of 12

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-20229-CIV-SEITZ/SIMONTON
PALMAT INTERNATIONAL, INC.,
a Florida corporation; ROBERTO
WELLISCH, individually,
Petitioners,
vs.
ERIC H. HOLDER, JR., Attorney
General of the United States of America,
Respondent.
_________________________________/
RESPONDENTS MOTION TO STAY DISCOVERY
OR IN THE ALTERNATIVE, FOR PROTECTIVE ORDER
Respondent, Eric H. Holder, Jr., Attorney General of the United States of America,
through the undersigned Assistant U.S. Attorney, pursuant to Federal Rule of Civil Procedure
26(c) hereby requests that this Court enter an Order staying discovery, or for protective order,
until the Court rules on Respondents pending Motion to Dismiss.
INTRODUCTION
In the matter before this Court, Petitioners seek the extraordinary relief of enjoining the
Attorney General of the United States from exercising his executive authority to execute mutual
legal assistance requests pursuant to a mutual legal assistance treaty (MLAT) between the
United States and Argentina. Respondent has a strong likelihood of success on the merits. As
Respondent sets forth in his Motion to Dismiss [D.E. 27], Petitioners seek this exceptional relief
despite the fact that their claims are barred by the express language of the applicable treaty and

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the lack of support for their constitutional claims.

Notwithstanding the pendency of

Respondents dispositive motion, Petitioners seek discovery of the very information to which
they have no entitlement under the treaty.1
BACKGROUND
Petitioners filed a Petition for Writ of Mandamus, Declaratory Judgment, and Violation
of Administrative Procedure Act, seeking to enjoin the United States from executing a mutual
legal assistance request they allege was made from the Republic of Argentina, pursuant to the
Treaty Between the Government of the United States of America and the Government of the
Republic of Argentina on Mutual Legal Assistance in Criminal Matters, Signed at Buenos Aires
on Dec. 4, 1990 (US-Argentina MLAT), S. Treaty Doc. No. 102-18 (1991). A copy of the USArgentina MLAT is attached as Exhibit A. Petitioners claim, generally, that Respondents
compliance with his obligations under the US-Argentina MLAT in this instance would violate
Petitioners constitutional rights given that Argentina has made public all the information that it
has been able to compile regarding Petitioners and will most likely make public any bank records
obtained pursuant to the MLAT request. See Pet. [D.E. 1], at 15.
In response, Respondent filed a Motion to Dismiss, arguing primarily that this Court
lacks subject matter jurisdiction over Petitioners claims since the US-Argentina MLAT by its
express terms is intended solely for mutual legal assistance between the parties and does not
create any enforceable rights in a private person to obtain, suppress, . . ., or to impede the
execution of a request. See US-Argentina MLAT, art. 1, 4. Accepting Petitioners allegations
1

Although stays of discovery are not routinely granted simply because a motion to dismiss is pending, cf. S.D. Fla.
App. A. I.D(5), this case is anything but routine. Petitioners seek discovery to reveal a confidential request for
assistance by a foreign government and the United States internal deliberations about such a request, in a case in
which the very action is barred by the applicable treaty and permitting discovery to go forward could have major
consequences for the United States relations with that government and other foreign governments.

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about the existence of a MLAT request as true, Respondent also submitted that Petitioners fail to
state a constitutional claim because generally: (i) Petitioners constitutional claim does not
provide a valid basis to review the Executive Branchs decision to comply with an MLAT
request; and (ii) Respondents production of financial records to Argentina in aid of a criminal
investigation and in response to a valid MLAT request does not violate the Constitution.
Thereafter, and despite the pendency of Respondents Motion to Dismiss, Petitioners
served Respondent with Interrogatories and Request for Production of Documents, seeking three
broad categories of information regarding: (1) internal communications between various
components of the U.S. Department of Justice and other federal agencies; (2) communications
between various federal components and the Republic of Argentina; and (3) communications to
third-party financial institutions and documents provided by such institutions to the United
States. A copy of the discovery requests is attached as Exhibit B.
However, as articulated by Magdalena Boynton, Associate Director of the Office of
International Affairs, Criminal Division, U.S. Department of Justice, harm my result from the
Respondents failure to keep information confidential. See Declaration of Magdalena Boynton
(Boynton Decl.), Associate Director of the Office of International Affairs, Criminal Division,
U.S. Department of Justice, dated November 6, 2012, attached as Exhibit C.
ARGUMENT
The Eleventh Circuit has recognized that it is appropriate to stay discovery until
preliminary questions of law that may dispose of a case have been resolved. See Chudasama v.
Mazda Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997) (Facial challenges to the legal
sufficiency of a claim or defense, such as a motion to dismiss based on failure to state a claim for

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relief, should . . . be resolved before discovery begins.); Moore v. Potter, 141 F. Appx 803,
807-08 (11th Cir. 2005) (district court did not abuse discretion when it stayed discovery). In
deciding whether to stay discovery pending resolution of a motion to dismiss, the court must
balance the harm produced by a delay in discovery against the possibility that the motion will be
granted and entirely eliminate the need for such discovery. Schreiber v. Kite Kings Lake, LLC,
No. 2:10-cv-391, 2010 WL 3909717, at 1 (M.D. Fla. Oct. 1, 2010) (citing Koock v. Sugar &
Felsenthal, LLP, No. 8:09-cv-609-T-17EAJ, 2009 WL 2579307, at 2 (M.D. Fla. Aug. 19, 2009)).
A stay is especially appropriate where, as here, the motion pending before this Court is
dispositive, goes to this Courts very jurisdiction to proceed, and raises purely legal issues, for
which discovery would not be helpful.

Chudasama, 123 F.3d at 1367; see also Cheshire v.

Bank of Am., NA, 351 F. Appx 386, 388 (11th Cir. 2009) (Defendants motion to dismiss raised
only legal questions and, therefore, [plaintiff] had no right to discovery.); Horsley v. Feldt, 304
F.3d 1125, 1131 n.2 (11th Cir. 2002) (Same).
Because Respondents Motion to Dismiss raises purely legal issues that if resolved in
favor of the Respondent will dispose of the case, factual discovery will not aid the resolution of
such Motion. Accordingly, a stay of discovery is warranted.
I.

The US-Argentina MLAT Requires That Requests be Kept Confidential.

A.

Article 5 of the US-Argentina MLAT Requires Confidentiality

The Constitution accords treaties to which the United States is a party the status of
supreme law of the land. U.S. Const. Art. VI, 2. The Supreme Court has long recognized
that the Constitution places treaties on equal footing with legislative acts of Congress. See
Rainey v. United States, 232 U.S. 310 (1914); United States v. Lee Yen Tai, 185 U.S. 213 (1902);

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Horner v. United States, 143 U.S. 570 (1892); Whitney v. Robertson, 124 U.S. 190 (1888).
Mutual legal assistance treaties generally, and the US-Argentina MLAT, specifically, are selfexecuting treaties. See Letter of Transmittal from the President of the United States to the Senate,
October 31, 1991 (Exhibit A). Further, self-executing treaties such as this one are enforceable in
U.S. courts. See e.g., U.S. v. Alvarez-Machain, 504 U.S. 655, 667 (1992) (noting that selfexecuting treaties are enforceable).
The Supreme Court has also recognized that a fundamental principle and goal of treaty
construction and interpretation is to determine and apply the intention of the parties because it is
[the Courts] responsibility to give the specific words of the treaty a meaning consistent with the
shared expectations of the contracting parties. Air France v. Saks, 470 U.S. 392, 399 (1985). In
applying this fundamental principle in its analysis of the US-Canada mutual legal assistance
treaty, the Eleventh Circuit stated that a determination of the parties intention begin[s] with the
text of the treaty and the content in which the written words are used. In Re Commissioners
Subpoenas, 325 F.3d 1287, 1294 (citations omitted).
The US-Argentina MLAT requires that the party executing a request for mutual legal
assistance use its best efforts to keep confidential the request if such confidentiality is
requested by the Central Authority of the requesting state. See US-Argentina MLAT, art. 5, 5.
It is thus axiomatic that in negotiating the subject MLAT, the United States and Argentina
recognized the sensitive nature of criminal investigations and proceedings and the resulting need
for confidentiality in dealing with such matters. See Boynton Decl., at 8. Failure to comply
with the confidentiality provision set forth in Article 5 could be characterized by the requesting
state as a breach by the requested state of the US-Argentina MLAT, in violation of its
international obligations. See id. at 21.
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Moreover, if an MLAT request under the US-Argentina MLAT cannot be executed

without maintaining the requested confidentiality, the requested state is further obligated by the
subject MLAT to consult with the requested state prior to the requests disclosure in order to
allow the requesting state to determine whether the request should nevertheless be executed.
See US-Argentina MLAT, art. 5, 5; Boynton Decl., at 15, 18. Thus, if presented with an
order compelling discovery regarding an MLAT request, the United States would be obligated
under the US-Argentina MLAT to inform Argentina that the confidentiality of the request cannot
be maintained and allow Argentina an opportunity to withdraw the request prior to disclosure to
prevent any harm to the foreign criminal investigation that may result.
B.

Additional Authority Requires Confidential Treatment of MLAT Requests

Relevant U.S. authority also provides for confidentiality when seeking to execute foreign
requests for assistance in criminal matters, consistent with the confidentiality the United States
affords to its own criminal investigations and prosecutions. In executing foreign requests for
assistance, the United States relies on the statutory authority provided by 18 U.S.C. 3512,
which empowers a federal judge to issue such orders as may be necessary to execute the
request. In the context of criminal proceedings, requests for mutual legal assistance, whether
through MLATs or non-treaty based letters rogatory, are customarily received and appropriate
action taken with respect thereto ex parte.
Both Section 3512 and Article 5 of the US-Argentina MLAT authorize the use of
compulsory process in the execution of treaty requests comparable or similar to that used in
domestic criminal investigations or prosecutions. Because subpoenas utilized in U.S. criminal
proceedings (i.e., grand jury and criminal trial subpoenas) are issued without notice to any party
other than the recipients (i.e., no notice to targets or defendants), orders and commissioners
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subpoenas issued in execution of MLAT requests pursuant to Section 3512 and the applicable
treaty likewise require no notice other than to the recipients of the subpoena. See, e.g., Boynton
Decl., at
II.

Discovery Sought May Be Privileged, and Protected from Disclosure.

Petitioners seek discovery that, apart from not being reasonably calculated to lead to the

discovery of admissible evidence as it does not bear a reasonable relationship to the gravamen of
their Petition, encompasses a broad range of documents and material that may be subject to
various privileges, and as a result, protected from disclosure. The information and documents
sought by Petitioners encompass the following categories: (i) information regarding the internal
deliberative processes of the United States in evaluating incoming MLAT requests; (ii)
communications the United States may have with its foreign counterparts in Argentina about any
requestswhether or not such request relates to Petitioners; and (iii) and communications the
United States might undertake with other U.S. government agencies in order to execute an
MLAT request. These categories of information, on their face, are likely to implicate a wide
range of privileges, including those protecting the deliberative process, work product, attorneyclient communications, law enforcement matters, and perhaps others.
III.

Disclosure of Documents Requested Would Harm the United States Ability to Seek
Reciprocity and Impact Foreign Relations With Treaty Partners.
MLATs create reciprocal treaty obligations between the parties to provide each other

with legal assistance in criminal matters.

See Boynton Decl., at 7.

Annually the U.S.

Department of Justice Office of International Affairs (OIA) receives approximately 3,000

requests for mutual legal assistance from foreign authorities seeking assistance in gathering
evidence located in the United States for use in that countrys criminal investigations and
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prosecutions. See id. at 6. OIA also makes nearly 1,000 such requests to foreign authorities for
assistance in United States criminal investigations and prosecutions. See id. Such requests are
made pursuant to a network of bilateral MLATs in force with over 70 countries, an increasing
number of multilateral conventions, and pursuant to non-treaty mechanisms such as letters
rogatory and letters of request. See id.
The

United

States

and

its

treaty

partners

treat

government-to-government

communications and deliberations regarding an MLAT request as sensitive law enforcement

matters that are not subject to disclosure. See id. at 8. Such expectations of confidentiality are
not limited to the MLAT context but extend to sensitive government-to-government
communications generally. See id. As a matter of treaty practice and reciprocity, the United
States must and does make its best efforts to ensure that requests for confidentiality received
from MLAT partners are honored and that MLAT requests it receives are similarly protected
from disclosure. See id. at 11. Thus, the legal requirement that the United States honor its
treaty obligations further implicates the strong United States interest in ensuring that its foreign
counterparts, in this case Argentina, reciprocate with respect to confidentiality when asked to
provide assistance in securing evidence for use in U.S. domestic criminal investigations and
prosecutions. Failure to provide any confidentiality requested by Argentina would significantly
impact that countrys ability and willingness to accord reciprocal treatment to similar U.S.
requests for assistance.
As articulated by the Associate Director of the Office of International Affairs, U.S.
Department of Justice, the United States ability to maintain effective law enforcement relations
with its treaty partners, including Argentina, is imperative to the United States ability to
investigate, prosecute and assist in the prosecution of a wide array of criminal activity that,
8

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increasingly, transcends national borders. See Boynton Decl., at 20. The inability of the
United States to fully comply with its obligations under the US-Argentina MLAT could not only
constitute a violation of the subject MLAT as described above, but also could have a chilling
effect on the ability of both parties to communicate freely and candidly regarding matters that
directly affect the security of their citizens, and often, the security of individuals beyond their
respective borders. See id. at 21. There is such a strong need for confidentiality in the MLAT
process that some foreign countries operate under the assumption that such requests will remain
confidential even absent a specific request for confidentiality. See id. at 11.
Responding to discovery requests for information and communications relevant to a
foreign criminal matter that is treated as confidential pursuant to the terms of the applicable
treaty risks preventing the United States from fulfilling its treaty obligation to maintain the
confidentiality of the request and impedes the usual and proper application of the US-Argentina
MLAT and. See id at 18. Further, the inability of the United States to provide foreign
authorities with the confidentiality to which they are entitled under an MLAT may compromise
the United States position with treaty partners that the United States receive confidential
handling of its own MLAT requests involving sensitive criminal investigations sent to foreign
authorities. See id. at 19. The United States ability to further its significant domestic and law
enforcement interests would be compromised without the ability to obtain assistance and secure
evidence located abroad. See id. at 22.
CONCLUSION
For the foregoing reasons, Respondent requests that this Court enter an Order staying
discovery, or a protective order until the Court rules on Respondents pending Motion to
Dismiss.
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Dated: November 8, 2012

Respectfully submitted,
WIFREDO A. FERRER
UNITED STATES ATTORNEY

By:

s/ Marlene A. Fernandez-Karavetsos
MARLENE A. FERNANDEZ-KARAVETSOS
Assistant United States Attorney
Florida Bar No.: 187569
Marlene.Fernandez-Karavetsos@usdoj.gov
99 N.E. 4th Street, Third Floor
Miami, Florida 33132
Tel: (305) 961- 9341
Fax: (305) 530-7139
Counsel for Respondent

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on November 8, 2012, I electronically filed the foregoing
document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document
is being served this day on all counsel of record identified on the Service List by CM/ECF.

s/Marlene A. Fernandez-Karavetsos
MARLENE A. FERNANDEZ-KARAVETSOS
Assistant United States Attorney

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CERTIFICATE OF GOOD FAITH CONFERENCE

I hereby certify that I have conferred with counsel for Petitioners seeking an agreement to
stay the discovery until such time as this Court rules on the Motion to Dismiss. However,
Petitioners do not agree to such relief requested but do not oppose the filing of this Motion.

s/Marlene A. Fernandez-Karavetsos
MARLENE A. FERNANDEZ-KARAVETSOS
Assistant United States Attorney

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SERVICE LIST
PALMAT INTERNATIONAL, INC. and ROBERT WELLISCH v. ERIC H. HOLDER,
JR., Attorney General of the United States of America
CASE NO. 12-CV-20229-SEITZ/SIMONTON
United States District Court Southern District of Florida

Jacqueline M. Arango, Esq.

Akerman Senterfitt
SunTrust International Center
One S.E. Third Avenue 25th Floor
Miami, Florida 33131-1704
Telephone: (305) 374-5600
Facsimile: (305) 374-5095
jacqueline.arango@akerman.com
Francisco A. Rodriguez, Esq.
Akerman Senterfitt
SunTrust International Center
One S.E. Third Avenue 25th Floor
Miami, Florida 33131-1704
Telephone: (305) 374-5600
Facsimile: (305) 374-5095
francisco.rodriguez@akerman.com

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Exhibit
A

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Exhibit
B

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Exhibit
C

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