## Facts

- Tim Fuhr claimed to be the heir to the Bäuml family fortune and searched for assets allegedly connected to Dr. Ambrosius Wolfgang Bäuml, the last Bäuml heir.
- Fuhr’s search led him to a Credit Suisse AG account that he believed belonged to Dr. Bäuml.
- In 2006, Fuhr’s investigator contacted a Credit Suisse official in Zurich, stating that Bäuml had a Credit Suisse account and that Fuhr, as heir, sought information about it.
- Credit Suisse initially provided some documents relating to an account the investigator associated with Bäuml, but later stopped cooperating after determining that the account was not Bäuml’s.
- In 2012, Credit Suisse told Fuhr that an internal investigation found no evidence of any banking relationship between Credit Suisse and Bäuml.
- During the asset search, Fuhr accused Luis Marimón Garnier of wrongfully diverting funds from Bäuml’s alleged Credit Suisse account.
- Marimón (along with related parties) sued Fuhr for defamation in Germany based on those accusations.
- To obtain evidence for use in defending the German defamation case, Fuhr applied in the U.S. district court for discovery from Credit Suisse under 28 U.S.C. § 1782.
- The district court authorized Fuhr to issue a subpoena to Credit Suisse for bank records; Credit Suisse moved to quash.
- The district court denied the motion to quash, reasoning that enforcement would not circumvent Swiss banking-privacy law or expose Credit Suisse to criminal liability because Bäuml owned the account and Fuhr was Bäuml’s heir, relying largely on Credit Suisse communications that appeared to acknowledge Bäuml’s ownership.
- Credit Suisse appealed, arguing that the district court’s ruling rested on a mistaken view of account ownership and therefore misjudged circumvention and comity concerns tied to Swiss bank-secrecy rules.

## Issues

1. Whether the district court abused its discretion by granting and enforcing § 1782 discovery after concluding that Swiss banking-privacy law would not bar production because the account belonged to Bäuml and Fuhr was his heir.
2. Whether the district court’s circumvention and comity evaluation rested on a clearly erroneous factual finding about the identity of the holder of the relevant Credit Suisse account.

## Decision

- The Eleventh Circuit held that the district court abused its discretion because its circumvention and comity analyses depended on a clearly erroneous factual finding about who owned the account.
- The Eleventh Circuit vacated the order granting the § 1782 application and denying the motion to quash, and remanded for further proceedings.

## Legal Principles

- A district court’s decision to grant discovery under 28 U.S.C. § 1782 is reviewed for abuse of discretion; underlying factual findings are reviewed for clear error.
- Even when § 1782’s statutory requirements are satisfied, the court must exercise discretion using factors that include whether the request attempts to bypass foreign proof-gathering limits and how foreign sovereign interests (comity) are affected.
- When a court’s § 1782 discretionary ruling turns on a predicate fact that shapes foreign-law and comity consequences (such as whether the applicant is entitled to the records under foreign bank-secrecy rules), that fact must be supported by the record.
- If the discretionary evaluation of circumvention and comity is built on a clearly erroneous factual premise, the § 1782 order cannot stand and must be reconsidered on a correct factual basis.

## Conclusion

The Eleventh Circuit vacated and remanded because the district court’s decision to enforce a § 1782 subpoena for Credit Suisse bank records treated Swiss bank-secrecy and comity concerns as minimal based on an unsupported finding that the account belonged to Dr. Bäuml and that Fuhr, as heir, was entitled to the information; that mistaken ownership finding tainted the court’s circumvention and comity reasoning and therefore amounted to an abuse of discretion.


Fuhr v. Credit Suisse AG, 687 F. App’x 810 (2017)