Clarifying Jurisdiction and Finality in Protective Orders and §1782 Petitions Post-Dismissal

Introduction

Absolute Activist Value Master Fund Limited and related entities (“the Funds”) sued Susan Elaine Devine in the Middle District of Florida, alleging RICO violations, fraud and unjust enrichment. During discovery, both sides exchanged sensitive financial and corporate documents under a stipulated protective order. That order allowed third‐party disclosures in limited circumstances, including international criminal requests, and required return or destruction of confidential materials 60 days after final disposition. Before any corporate depositions could be taken, the Funds voluntarily dismissed their suit. They then pressed the district court to return Devine’s copies of the Funds’ records for destruction—a transfer order Devine challenged on appeal (No. 21-13587).

Separately, Devine faced criminal proceedings in Liechtenstein. She sought those same documents either under the protective order or by way of 28 U.S.C. § 1782 mutual‐legal‐assistance treaty procedures. The district court denied enforcement and refused to issue a § 1782 subpoena, as well as declined to transfer that application back to the Southern District of New York, where the Funds’ New York counsel (“Spears”) was located (Nos. 22-11313, 22-11590, 22-13207).

The Eleventh Circuit consolidated these four appeals and addressed: (1) mootness and appellate jurisdiction over the transfer order; (2) subject‐matter jurisdiction to enforce or modify a protective order post‐dismissal; (3) interlocutory appealability of a stay denial; and (4) proper exercise of jurisdiction and discretion over a § 1782 petition.

Summary of the Judgment

After careful review, the Eleventh Circuit rendered four core rulings:

• Appeal No. 21-13587 (Transfer Order)—Dismissed as moot. Because Spears lost the hard drive containing the confidential materials, vacating the transfer order could not restore Devine’s access or afford meaningful relief.
• Appeal No. 22-11313 (Enforcement of Protective Order)—Dismissed for lack of appellate jurisdiction. Once the Funds voluntarily dismissed the RICO suit under Rule 41(a)(1)(A), the district court lacked subject‐matter jurisdiction to grant or deny Devine’s motion to enforce or modify that protective order.
• Appeal No. 22-11590 (Stay Denial)—Dismissed for lack of appellate jurisdiction. The order denying an extension of the stay of the transfer order was neither final nor authorized for interlocutory appeal.
• Appeal No. 22-13207 (§ 1782 Petition)—Affirmed. The Middle District of Florida properly exercised personal jurisdiction over Spears under the “resides or is found” language of § 1782(a). The district court, in its discretion, denied the petition based on Intel/Clerici factors, finding the request an attempt to relitigate prior unfavorable orders and outside the protective order’s scope.

Analysis

Precedents Cited

• Absolute Activist Value Master Fund Ltd. v. Devine (Devine I), 998 F.3d 1258 (11th Cir. 2021): Held that a one‐sided voluntary dismissal under Rule 41(a)(1)(A)(i) divests the district court of jurisdiction over collateral matters beyond contempt, costs, fees, sanctions and arbitration confirmations.
• Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994): Explained that enforcement of a settlement agreement requires its own jurisdictional basis and cannot rely on ancillary jurisdiction where the court’s sole act was dismissal of the main suit.
• Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) and In re Clerici, 481 F.3d 1324 (11th Cir. 2007): Articulated statutory requirements and discretionary “Intel factors” for court assistance under 28 U.S.C. § 1782.
• Nyaga v. Ashcroft, 323 F.3d 906 (11th Cir. 2003): Confirmed that a case is moot when a court can no longer provide meaningful relief.
• Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253 (11th Cir. 1996): Recognized that an out‐of‐state law firm providing sustained legal services can be “found” in a forum for personal jurisdiction purposes.
• In re del Valle Ruiz, 939 F.3d 520 (2d Cir. 2019): Held the “resides or is found” requirement in § 1782 tracks the limits of personal jurisdiction under due process.

Legal Reasoning

1. Mootness and Vacatur: Under Nyaga, an appeal must be dismissed if no meaningful relief can be granted. Here, Spears misplaced the only copy of the confidential files. Vacating the transfer order would not restore the materials to Devine, so the appeal was moot.

2. Jurisdiction After Voluntary Dismissal: Rule 41(a)(1)(A)(i) dismissals unilaterally remove a case from the court’s docket. As Devine I held, only contempt, costs, fees, Rule 11 sanctions and arbitration‐confirmation motions survive. Attempts to enforce or modify a protective order fall outside those exceptions. Kokkonen reinforces that a stipulated dismissal does not carry jurisdiction to enforce separate contract terms absent an express reservation.

3. Interlocutory Appealability: The stay‐extension denial was a non‐final, non‐collateral order. It was neither a final judgment nor among the narrow categories of interlocutory appeals (e.g., injunctions under § 1292(a)(1)), so there was no appellate jurisdiction.

4. Section 1782 Jurisdiction and Discretion:

• Statutory Requirements (§ 1782(a)): “Person resides or is found” in a district; the materials sought are for use in a foreign or international proceeding; the request is by letter rogatory or on application of any interested person. Spears, though a New York–based firm, was sufficiently “found” in Florida because it produced documents and defended depositions here in prolonged RICO litigation (analogous to Robinson). The “resides or is found” test extends to the bounds of due‐process personal jurisdiction (del Valle Ruiz).
• Discretionary Intel Factors: Even where § 1782 requirements are met, the court may deny relief if:
  1. the target is a litigation participant (less need for assistance),
  2. the foreign tribunal’s receptivity is unclear or adverse,
  3. the request attempts to circumvent foreign or U.S. proof‐gathering policies, or
  4. the request is unduly intrusive or burdensome.
  The district court found Devine’s petition an “end‐run” around prior adverse rulings and outside the protective order’s contours—an appropriate exercise of discretion.

Impact

•Post‐Dismissal Protective Orders: Parties cannot enforce or amend a stipulated protective order by motion once a rule‐41(a)(1)(A) dismissal is filed, except through contempt or related sanctions.
•Ancillary Jurisdiction Limits: Reinforces Kokkonen that voluntary dismissals do not carry collateral jurisdiction to enforce side agreements.
•§1782 Forum Clarified: Extends the “found” analysis to personal jurisdiction standards. Out‐of‐state counsel who perform substantial litigation work in a forum may be subject to § 1782 subpoenas there.
•Intel Factor Guidance: Confirms that courts may deny international discovery to prevent forum‐shopping, end‐runs around judicial rulings, or undue intrusion.

Complex Concepts Simplified

• Voluntary Dismissal (Rule 41(a)(1)(A)(i)): A plaintiff can unilaterally dismiss without notice to the court. Once filed, the court loses jurisdiction over the case’s merits and most post-dismissal motions.
• Ancillary Jurisdiction: A court’s inherent power to resolve issues “ancillary” to a case it still controls—or to manage its orders—but not to enforce wholly separate agreements without explicit authority.
• Protective Order: A contract‐like stipulation that governs handling of confidential discovery materials, including permissible disclosures and disposal obligations.
• §1782 Letter Rogatory vs. §1782 Application: A letter rogatory is a formal request from a foreign tribunal to a U.S. court for assistance. Alternatively, any “interested person” may directly petition a U.S. court under § 1782(a).
• Intel Factors: Four discretionary guideposts from Intel and Clerici that help courts decide whether to grant international discovery even if statutory requirements are met.

Conclusion

The Eleventh Circuit’s decision in Absolute Activist v. Devine tightens the boundaries of post-dismissal jurisdiction over protective orders and clarifies the reach of 28 U.S.C. § 1782. It confirms that once a lawsuit is voluntarily dismissed under Rule 41(a)(1)(A), the district court cannot entertain motions to enforce or modify stipulated protective orders—those must be enforced by contempt or separate contract actions. The Court also affirms that § 1782 petitions may be heard where the target is “found”—in line with personal‐jurisdiction principles—and that district judges retain robust discretion under the Intel factors to guard against forum‐shopping or undue intrusion. This ruling will guide litigants, counsel and courts in navigating confidentiality protocols and international evidence‐gathering in multi-jurisdictional disputes.