Amicus Curiae Brief — Ford Motor Company, Petitioner v. Montana Eighth Judicial District Court, et al.

Supreme Court briefMar 6, 2020

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What actually matters in this document.

Text

Nos.

Nos. 19-368,

19-368, 19-369

19-369

N THE

THE

IIN

fpupreme

tie Einiteb

Supreme Court of the

United iptatez

States

______________________________________________

F

ORD MOTOR

MOTOR C

OMPANY,

COMPANY,

FORD

Petitioner,

Petitioner,

v.

V.

MONTANA

EIGHTH

MONTANA E

IGHTH JUDICIAL

JUDICIAL D

ISTRICT C

OURT, et

et al.,

al.,

DISTRICT

COURT,

Respondents.

Respondents.

_______________________________________________

F

ORD MOTOR

MOTOR C

OMPANY,

COMPANY,

FORD

Petitioner,

Petitioner,

v.

V.

ADAM B

ADAM

BANDEMER,

ANDEMER,

Respondent.

Respondent.

_______________________________________________

ON

O

N WRITS

WRITS OF

ERTIORARI TO

UPREME C

OURTS OF

OF C

CERTIORARI

TO THE

THE S

SUPREME

COURTS

OF

MONTANA

MONTANA AND

AND MINNESOTA

MINNESOTA

_______________________________________________

BRIEF

OF AMICUS

AMICUS CURIAE

OF

BRIEF OF

CURIAE INSTITUTE

INSTITUTE OF

INTERNATIONAL

SUPPORT OF

INTERNATIONAL BANKERS

BANKERS IN

IN SUPPORT

OF

PETITIONER

PETITIONER

_______________________________________________

Elbert

Elbert Lin

Lin

Counsel

of Record

Record

Counsel of

H

HUNTON

UNTON ANDREWS

ANDREWS K

KURTH

URTH LLP

LLP

951

Street, E.

951 East

East Byrd

Byrd Street,

E. Tower

Tower

Richmond,

Richmond, Virginia

Virginia 23219

23219

Phone:

Phone: (804)

(804) 788-8200

788-8200

elin@HuntonAK.com

elin@HuntonAK.com

Johnathon E.

Schronce

Johnathon

E. Schronce

David

Parker

David M.

M. Parker

J. Pierce

J.

Pierce Lamberson

Lamberson

H

UNTON ANDREWS

ANDREWS K

URTH LLP

HUNTON

KURTH

LLP

951

Tower

951 East

East Byrd

Byrd Street,

Street, E.

E. Tower

Richmond,

Virginia 23219

23219

Richmond, Virginia

Phone: (804)

Phone:

(804) 788-8200

788-8200

March

6, 2020

March 6,

2020

Counsel

for Amicus Curiae

Counsel for

1i

TABLE OF

TABLE

OF CONTENTS

CONTENTS

TABLE

TABLE OF

OF CONTENTS

CONTENTS ..............................................ii

TABLE

AUTHORITIES ....................................... ii

ii

TABLE OF

OF AUTHORITIES

INTRODUCTION

AND INTEREST

OF AMICUS

AMICUS

INTRODUCTION AND

INTEREST OF

CURIAE .......................................................................1

CURIAE

1

SUMMARY OF

2

SUMMARY

OF ARGUMENT

ARGUMENT ..................................... 2

ARGUMENT

4

ARGUMENT ............................................................... 4

I. A

A Broad

Would Open

I.

Broad Relatedness

Relatedness Standard

Standard Would

Open the

the

Floodgates

to

Third-Party

Discovery

in

Domestic

Floodgates to Third-Party Discovery in Domestic

Litigation.

4

Litigation. ............................................................... 4

II. A

A Broad

Would

II.

Broad Relatedness

Relatedness Standard

Standard Would

Dramatically Expand

Discovery in

in Aid

Aid of

of Foreign

Dramatically

Expand Discovery

Foreign

Proceedings

§ 1782.

1782. .................. 11

11

Proceedings under

under 28

28 U.S.C.

U.S.C. §

CONCLUSION

17

CONCLUSION ..........................................................17

11

ii

TABLE

AUTHORITIES

TABLE OF

OF AUTHORITIES

Page(s)

Page(s)

Cases

Cases

Application of

of Malev

Malev Hungarian

Airlines,

Application

Hungarian Airlines,

964

1992) ................................... 12

12

964 F.2d

F.2d 97

97 (2d

(2d Cir.

Cir. 1992)

Application to

Enforce Admin.

Admin. Subpoenas

Subpoenas Duces

Duces

Application

to Enforce

Tecum

of the

SEC v.

v. Knowles,

Knowles,

Tecum of

the SEC

87

F.3d

413

(10th

Cir.

1996) .................................. 6

6

87 F.3d 413 (10th Cir. 1996)

Arthur Andersen

Andersen &

v. Finesilver,

Finesilver,

Arthur

& Co.

Co. v.

546

(10th Cir.

1976) .............................. 10

10

546 F.2d

F.2d 338

338 (10th

Cir. 1976)

Asahi Metal

Metal Indus.

Indus. Co.,

v. Super.

Super. Ct.

of

Asahi

Co., Ltd.

Ltd. v.

Ct. of

California,

Solano County,

California, Solano

County,

480

U.S.

102

(1987)

480 U.S. 102 (1987) ................................................ 9

9

Brandi-Dohrn v.

v. IKB

IKB Deutsche

Deutsche Industriebank

Industriebank AG,

AG,

Brandi-Dohrn

Cir. 2012)

2012) ............................... 3,

3, 12

673 F.3d

12

673

F.3d 76

76 (2d

(2d Cir.

Burger King

King Corp.

v. Rudzewicz,

Rudzewicz,

Burger

Corp. v.

471

U.S. 462

(1985) ................................................ 6

6

471 U.S.

462 (1985)

Certain

Funds, Accounts

Accounts and/or

and/or Inv.

Inv. Vehicles

v.

Certain Funds,

Vehicles v.

KPMG,

KPMG, L.L.P.,

L.L.P.,

798

113 (2d

(2d Cir.

Cir. 2015)

2015) ................................. 12

12

798 F.3d

F.3d 113

Daimler AG

AG v.

v. Bauman,

Bauman,

Daimler

571

U.S. 117

117 (2014)

passim

(2014) ...................................... passim

571 U.S.

111

iii

In re

Ruiz,

In

re del

del Valle

Valle Ruiz,

939

(2d Cir.

passim

2019) ......................... passim

939 F.3d

F.3d 520

520 (2d

Cir. 2019)

Dudnikov v.

v. Chalk

Fine Arts,

Arts, Inc.,

Inc.,

Dudnikov

Chalk &

& Vermilion

Vermilion Fine

514

1063 (10th

8

514 F.3d

F.3d 1063

(10th Cir.

Cir. 2008)

2008) .......................... 7,

7, 8

Four Pillars

Pillars Enterprises

Enterprises Co.,

v. Avery

Avery Dennison

Dennison

Four

Co., Ltd.

Ltd. v.

Corp.,

Corp.,

308

1075 (9th

(9th Cir.

2002) .............................. 13

13

308 F.3d

F.3d 1075

Cir. 2002)

Goodyear

Dunlop Tires

S.A. v.

v. Brown,

Brown,

Goodyear Dunlop

Tires Operations,

Operations, S.A.

564

U.S.

915

(2011)

................................................

6

(2011)

564 U.S. 915

6

In re

Proceedings,

In

re Grand

Grand Jury

Jury Proceedings,

691 F.2d

1384 (11th

1982) ............................ 10

10

691

F.2d 1384

(11th Cir.

Cir. 1982)

Gucci

Am., Inc.

Inc. v.

v. Weixing

Li,

Gucci Am.,

Weixing Li,

768

122 (2d

(2d Cir.

10

Cir. 2014)

2014) ......................... 5,

768 F.3d

F.3d 122

5, 6,

6, 10

Helicopteros Nacionales

Nacionales de

S.A. v.

v. Hall,

Helicopteros

de Colombia,

Colombia, S.A.

Hall,

466

U.S. 408

(1984) ................................................ 6

6

466 U.S.

408 (1984)

Ins. Corp.

of Ireland,

Ireland, Ltd.

v. Compagnie

Bauxites

Ins.

Corp. of

Ltd. v.

Compagnie des

des Bauxites

de

de Guinee,

Guinee,

456

U.S. 694

694 (1982)

(1982) ................................................ 5

5

456 U.S.

Intel Corp.

v. Advanced

Advanced Micro

Micro Devices,

Devices, Inc.,

Inc.,

Intel

Corp. v.

542

542 U.S.

U.S. 241

241 (2004)

(2004) .................................. 11,

11, 12,

12, 16

16

Kestrel Coal

Pty. Ltd.

Ltd. v.

v. Joy

Inc.,

Kestrel

Coal Pty.

Joy Glob.,

Glob., Inc.,

362

(7th Cir.

2004) ................................ 13

13

362 F.3d

F.3d 401

401 (7th

Cir. 2004)

iv

iv

Kiobel v.

Royal Dutch

Dutch Petroleum

Petroleum Co.,

Kiobel

v. Royal

Co.,

569

U.S. 108

108 (2013)

(2013) ..............................................13

13

569 U.S.

Leibovitch

v. Islamic

Islamic Republic

Republic of

of Iran,

Iran,

Leibovitch v.

852

687 (7th

6, 7,

852 F.3d

F.3d 687

(7th Cir.

Cir. 2017)

2017) ...................... 5,

5, 6,

7, 8

8

Livnat

v. Palestinian

Palestinian Auth.,

Auth.,

Livnat v.

4

851 F.3d

851

F.3d 45

45 (D.C.

(D.C. Cir.

Cir. 2017)

2017) .................................. 4

Morrison v.

v. Natl.

Natl. Australia

Australia Bank

Bank Ltd.,

Ltd.,

Morrison

561

U.S. 247

247 (2010)

(2010) ..............................................13

13

561 U.S.

Richmark Corp.

v. Timber

Falling Consultants,

Richmark

Corp. v.

Timber Falling

Consultants,

959

1468 (9th

(9th Cir.

1992) .............................. 10

10

959 F.2d

F.2d 1468

Cir. 1992)

In re

Sargeant,

In

re Sargeant,

278

(S.D.N.Y. 2017)

14

814 (S.D.N.Y.

2017) ................... 14

278 F.

F. Supp.

Supp. 3d

3d 814

In re

Sealed Case,

In

re Sealed

Case,

141 F.3d

1998) ................................ 5

141

F.3d 337

337 (D.C.

(D.C. Cir.

Cir. 1998)

5

Sergeeva v.

v. Tripleton

Intl. Ltd.,

Sergeeva

Tripleton Intl.

Ltd.,

F.3d 1194

(11th Cir.

Cir. 2016)

2016) ............................ 13

834

1194 (11th

13

834 F.3d

Societe Nationale

Nationale Industrielle

Industrielle Aerospatiale

Aerospatiale v.

v. U.S.

Societe

U.S.

Dist. Ct.

for S.

S. Dist.

Dist. of

of Iowa,

Iowa,

Dist.

Ct. for

482

U.S. 522

10, 11

11

482 U.S.

522 (1987)

(1987) ........................................ 10,

U.S.

v. First

First Nat.

Nat. City

Bank,

U.S. v.

City Bank,

379

U.S. 378

10, 16

16

2, 8,

8, 10,

379 U.S.

378 (1965)

(1965) ................................ 2,

uBID,

Inc. v.

v. GoDaddy

Inc.,

uBID, Inc.

GoDaddy Group,

Group, Inc.,

Cir. 2010)

2010) .................................. 7

623 F.3d

(7th Cir.

623

F.3d 421

421 (7th

7

v

V

Statutes

Statutes

28

§ 1782

1782 ................................................ passim

passim

28 U.S.C.

U.S.C. §

Other Authorities

Authorities

Other

Fifth

Amendment ........................................................ 5

Fifth Amendment

5

Fourteenth

Amendment .......................................... 4,

5

Fourteenth Amendment

4, 5

Fed.

R. Civ.

Civ. P.

P. 4

4 ........................................................... 4

4

Fed. R.

Civ. P.

P. 45

45 ......................................................... 4

4

Fed.

Fed. R.

R. Civ.

S.Rep.

1580, 88th

S.Rep. No.

No. 1580,

88th Cong.,

Cong., 2d

2d Sess.

Sess. (1964),

(1964),

reprinted

in

1964

U.S.C.C.A.N.

3782

12

reprinted in 1964 U.S.C.C.A.N. 3782 .................. 12

Smit,

American Assistance

Assistance to

Foreign

Smit, American

to Litigation

Litigation in

in Foreign

and International

International Tribunals:

Section 1782

1782 of

of Title

and

Tribunals: Section

Title

28 of

of the

Revisited, 25

J. Intl.

Intl. L.

L.

28

the U.S.C.

U.S.C. Revisited,

25 Syracuse

Syracuse J.

&

1 (1998)..............................................

14, 17

17

14,

& Com.

Com. 1

(1998)

1

1

INTRODUCTION AND

AND

INTRODUCTION

INTEREST OF

OF AMICUS

AMICUS CURIAE

INTEREST

CURIAE'1

If affirmed,

below would

If

affirmed, the

the decisions

decisions below

would not

not just

just

affect the

of defendants

into courts

courts but

but

affect

the rights

rights of

defendants haled

haled into

also open

open the

floodgates to

also

the floodgates

to third-party

third-party discovery.

discovery.

Subpoenaed

Subpoenaed parties

parties have

have due

due process

process rights

rights too.

too.

Under

the Due

Due Process

a court

court can

can order

order

Under the

Process Clauses,

Clauses, a

personal

these

comply only

only if

if it

it has

has personal

these parties

parties to

to comply

jurisdiction

over them.

case will

will directly

impact

jurisdiction over

them. This

This case

directly impact

those

by determining

the scope

scope of

of

those due

due process

process rights

rights by

determining the

specific personal

jurisdiction.

specific

personal jurisdiction.

This brief

brief highlights

collateral

This

highlights this

this potential

potential collateral

damage

from the

the Court’s

with

damage from

Court's decision

decision here,

here, with

particular

focus

on

international

banks—frequent

particular focus on international banks—frequent

targets

of third-party

because

targets of

third-party discovery

discovery requests

requests because

these

banks offer

offer services

services and

and products

are often

often

these banks

products that

that are

entangled

in disputes

disputes between

between other

other parties.

entangled in

parties. The

The

state high

courts below

below held

state

high courts

held that

that Petitioner’s

Petitioner's

advertising and

sale of

of other

other similar

similar cars

cars in

in forum

forum

advertising

and sale

states was

was "related"

“related” enough

specific

states

enough to

to establish

establish specific

jurisdiction,

though those

those other

other cars

cars bore

bore no

jurisdiction, even

even though

no

causal relationship

accidents at

at issue.

issue. By

causal

relationship to

to the

the accidents

By that

that

logic, international

international banks

banks could

could be

be compelled

compelled to

logic,

to

11 All

parties, including

All parties,

including counsel

for Respondents,

have

counsel for

Respondents, have

consented to

filing of

of this

brief. This

brief was

was not

authored

consented

to the

the filing

this brief.

This brief

not authored

in whole

or in

in part

by counsel

for any

A party

or a

in

whole or

part by

counsel for

any party.

party. A

party or

a party’s

party's

counsel did

contribute money

was intended

intended to

fund

counsel

did not

not contribute

money that

that was

to fund

preparing

or submitting

submitting this

brief. No

No person,

other than

amicus

preparing or

this brief.

person, other

than amicus

curiae, its

its members,

or its

its counsel,

counsel, contributed

contributed money

was

curiae,

members, or

money that

that was

this brief.

intended to

to fund

fund preparing

or submitting

submitting this

brief.

intended

preparing or

2

2

provide

any of

of their

their business

business

provide discovery

discovery regarding

regarding any

overseas provided

they conduct

conduct other

other similar

similar

overseas

provided that

that they

business within

within the

business

the United

United States.

States.

That possibility

is of

of grave

concern to

amicus

That

possibility is

grave concern

to amicus

Bankers (the

(the

curiae the

the Institute

of International

International Bankers

curiae

Institute of

national

“Institute”).

The Institute

Institute is

is the

the only

only national

"Institute").

The

association devoted

to representing

and

association

devoted exclusively

exclusively to

representing and

advancing the

interests of

of banking

banking organizations

organizations

advancing

the interests

headquartered

outside

the

United

States

operate

headquartered outside the United States that

that operate

in the

The IIB’s

consists

in

the United

United States.

States. The

IIB's membership

membership consists

of internationally

internationally headquartered

banking and

and

of

headquartered banking

financial institutions

institutions from

from around

world, which

which

financial

around the

the world,

would be

be on

on the

the front

front lines

of any

any such

such expansion

in

expansion in

would

lines of

third-party

third-party discovery.

discovery.

Through

this brief,

the Institute

Institute seeks

Through this

brief, the

seeks simply

simply to

to

ensure

this Court

is aware

aware of

of the

this case

case

ensure this

Court is

the wide

wide impact

impact this

explains why

why

will have.

Petitioner’s brief

brief convincingly

convincingly explains

will

have. Petitioner's

the

below are

wrong, and

specific

the decisions

decisions below

are wrong,

and that

that specific

jurisdiction

a defendant’s

jurisdiction requires

requires a

defendant's forum-state

forum-state

contacts to

alleged injury.

injury. The

The Institute

contacts

to cause

cause the

the alleged

Institute

does

arguments, but

but focuses

solely

does not

not rehash

rehash those

those arguments,

focuses solely

on how

will affect

affect third-party

on

how the

the decision

decision here

here will

third-party

discovery

in both

both domestic

and overseas

overseas litigation.

litigation.

discovery in

domestic and

SUMMARY OF

ARGUMENT

SUMMARY

OF ARGUMENT

I.

I. Affirming

Affirming the

the decisions

below would

would expand

decisions below

expand

third-party discovery

third-party

in domestic

litigation and

and cause

cause

discovery in

domestic litigation

at least

least two

First, it

it would

at

two major

major problems.

problems. First,

would deter

deter

international banks

banks from

from doing

business in

in the

international

doing business

the United

United

3

3

States.

A broad

broad relatedness

standard would

would closely

closely

States. A

relatedness standard

resemble

the type

of "doing

“doing business"

business” test

resemble the

type of

test this

this Court

Court

rejected

inconsistent with

in Daimler

Daimler

rejected as

as inconsistent

with due

due process

process in

AG v.

v. Bauman,

Bauman, 571

U.S. 117,

117, 141-42

141–42 (2014).

571 U.S.

(2014). Every

Every

AG

U.S

branch of

of a

a foreign

bank, or

or even

U.S.-based

U.S branch

foreign bank,

even U.S.-based

hook for

transaction,

could become

become a

a jurisdictional

for

transaction, could

jurisdictional hook

discovery

into an

an international

international bank's

bank’s business

business

discovery into

conducted overseas.

overseas. Second,

Second, overbroad

overbroad third-party

third-party

conducted

discovery

would

threaten

international

comity.

international

comity.

discovery would threaten

J urisdictional overreach

overreach has,

in the

“impeded

Jurisdictional

has, in

the past,

past, "impeded

negotiations

of international

international agreements"

agreements” and

and "led

“led to

negotiations of

to

international friction."

friction.” Ibid.

Ibid. It

It would

would do

so here

as

international

do so

here as

well, especially

when U.S.-style

U.S.-style discovery

is far

far more

well,

especially when

discovery is

more

expansive

than

that

of

an

international

bank’s

home

international

bank's

home

expansive than that of an

country.

country.

II. Those

Those problems

are magnified

in the

context of

of

II.

problems are

magnified in

the context

28

U.S.C. §

§ 1782,

1782, which

which allows

allows an

American court

court to

to

28 U.S.C.

an American

compel discovery

in aid

aid of

of a

a foreign

if,

foreign proceeding

proceeding if,

compel

discovery in

among other

other requirements,

“resides or

or is

is

among

requirements, a

a respondent

respondent "resides

found” in

in the

the judicial

In recent

years courts

courts

found"

judicial district.

district. In

recent years

have

1782 "increasingly

“increasingly broad

broad

have given

given Section

Section 1782

applicability,” Brandi-Dohrn

Brandi-Dohrn v.

v. IKB

IKB Deutsche

Deutsche

applicability,"

2012)

Industriebank AG,

AG, 673

80 (2d

Industriebank

673 F.3d

F.3d 76,

76, 80

(2d Cir.

Cir. 2012)

(internal quotation

(internal

and citation

citation omitted),

omitted), and

quotation marks

marks and

and

the

and scope

scope of

of Section

1782 petitions

the number

number and

Section 1782

petitions has

has

increased accordingly.

accordingly. Of

importance here,

here,

increased

Of particular

particular importance

the

that the

statute’s

the Second

Second Circuit

Circuit recently

recently held

held that

the statute's

requirement

a respondent

be "found"

“found” in

in a

requirement that

that a

respondent be

a judicial

judicial

district

the limits

limits of

of specific

specific jurisdiction.

jurisdiction.

district extends

extends to

to the

So

case will

will affect

affect the

the scope

scope of

of Section

1782 as

as

So this

this case

Section 1782

well, potentially

opening the

Institute’s members

well,

potentially opening

the Institute's

members to

to

4

4

the

of U.S.

courts in

connection

the discovery

discovery practices

practices of

U.S. courts

in connection

with overseas

overseas litigation

based solely

solely on

on those

with

litigation based

those

members’

similar business

business and

and services

services within

within the

members' similar

the

United

United States.

States.

ARGUMENT

ARGUMENT

I. A

A Broad

Standard Would

Would Open

I.

Broad Relatedness

Relatedness Standard

Open

in

the

to Third-Party

Third-Party Discovery

Disc overy in

the Floodgates

Floodgates to

Domestic

Domestic Litigation.

Litigation.

Both

federal and

and state

state courts

courts have

Both federal

have the

the power

power to

to

subpoena third

third parties

of

subpoena

parties for

for discovery.

discovery. Federal

Federal Rule

Rule of

Civil

allows litigants

litigants to

to subpoena

subpoena third

Civil Procedure

Procedure 45

45 allows

third

parties,

including international

international banks,

banks, for

parties, including

for discovery

discovery

in cases

cases pending

before federal

courts. Third

Third parties

in

pending before

federal courts.

parties

can

be

compelled

to

testify

at

depositions,

produce

can be compelled to testify at depositions, produce

documents

or things,

or permit

inspection of

of their

permit inspection

their

documents or

things, or

premises. Fed.

premises.

subpoenas

Fed. R.

R. Civ.

Civ. P.

P. 45(a)(1)(iii).

45(a)(1)(iii). Such

Such subpoenas

are enforceable

by court

court order,

order, id.

at (d)(2)(B)(i),

and

are

enforceable by

id. at

(d)(2)(B)(i), and

failure to

comply can

can result

contempt of

of court,

court, id.

failure

to comply

result in

in contempt

id.

at (g).

The

states have

adopted similar

similar rules

rules

at

(g).

The states

have adopted

authorizing the

the issuance

issuance of

of subpoenas

subpoenas for

for taking

authorizing

taking

third-party

in cases

cases in

courts.2

third-party discovery

discovery in

in their

their courts.2

2

case concerns

concerns the

the exercise

of specific

specific jurisdiction

by

2 This

This case

exercise of

jurisdiction by

state courts

federal courts.

state

courts rather

rather than

than federal

courts. Nevertheless,

Nevertheless, the

the Court’s

Court's

decision

here will

shape federal

federal courts'

courts’ exercise

decision here

will unquestionably

unquestionably shape

exercise

of specific

specific jurisdiction

as well.

well. That

because most

federal cases

cases

of

jurisdiction as

That is

is because

most federal

“concern Federal

of Civil

"concern

Federal Rule

Rule of

Civil Procedure

Procedure 4(k)(1),

4(k)(1), which

which directs

directs

courts to

state court

court would

would

courts

to determine

determine whether

whether a

a state

have personal

an

analysis

governed

by

have

personal jurisdiction,

jurisdiction,

an

analysis

governed

by

the

the Fourteenth

Amendment.” Liunat

Livnat v.

v. Palestinian

Palestinian Auth.,

Auth., 851

851

Fourteenth Amendment."

5

5

That subpoena

subpoena power

is limited,

limited, however,

by due

That

power is

however, by

due

process.

As a

a matter

of due

court order

order is

is

process. As

matter of

due process,

process, a

a court

only valid

valid if

court has

“jurisdiction over

over both

both the

the

only

if the

the court

has "jurisdiction

subject matter

and the

Ins. Corp.

of Ireland,

Ireland,

subject

matter and

the parties.”

parties." Ins.

Corp. of

Ltd.

v. Compagnie

Bauxites de

U.S.

Ltd. v.

Compagnie des

des Bauxites

de Guinee,

Guinee, 456

456 U.S.

694,

And as

courts of

of appeals

appeals have

694, 701

701 (1982).

(1982). And

as the

the courts

have

uniformly

concluded, that

bedrock principle

applies to

to

uniformly concluded,

that bedrock

principle applies

orders

orders compelling

compelling third

third parties

parties to

to respond

respond to

to

subpoenas.

See,

e.g.,

Leibovitch

v.

Islamic

Republic

of

subpoenas. See, e.g., Leibovitch v. Islamic Republic of

Iran, 852

852 F.3d

687 (7th

J.); Gucci

Iran,

F.3d 687

(7th Cir.

Cir. 2017)

2017) (Posner,

(Posner, J.);

Gucci

Am., Inc.

Inc. v.

v. Weixing

122, 134

134 (2d

(2d Cir.

Cir.

Am.,

Weixing Li,

Li, 768

768 F.3d

F.3d 122,

2014);

2014); In

In re

Sealed Case

141 F.3d

F.3d 337,

337, 341

341 (D.C.

(D.C. Cir.

Cir.

re Sealed

Case,, 141

1998).

1998).

There are

are two

ways to

to establish

There

two ways

establish personal

personal

The former

former is

jurisdiction:

and specific.

specific. The

is

jurisdiction: general

general and

unlikely

a foreign

foreign corporation,

corporation, like

like an

an

unlikely to

to apply

apply to

to a

international bank,

bank, as

as general

only

international

general jurisdiction

jurisdiction exists

exists only

where the

third party

is "essentially

“essentially at

at home.”

where

the third

party is

home."

Daimler, 571

at 122

122 (internal

(internal quotation

quotation marks

marks

Daimler,

571 U.S.

U.S. at

and citation

citation omitted).

omitted). That

That is

is normally

the place

of

place of

and

normally the

incorporation or

or the

of business

business in

incorporation

the principal

principal place

place of

in the

the

case of

of a

a corporation,

corporation, except

in "extraordinary"

“extraordinary” cases

cases

case

except in

in

in which

which "the

“the corporation's

corporation’s affiliations

affiliations with

with the

the State

State

in

in which

suit is

is brought

brought are

are so

so constant

constant and

which suit

and pervasive

pervasive

home in

‘as

it essentially

in the

the forum

forum

`as to

to render

render it

essentially at

at home

F.3d

(D.C. Cir.

Cir. 2017).

2017). And

And in

in any

any event,

“the Second,

F.3d 45,

45, 54

54 (D.C.

event, "the

Second,

Sixth, Seventh,

Seventh, Eleventh,

Circuits .. .. .. agree

Sixth,

Eleventh, and

and Federal

Federal Circuits

agree that

that

there

in the

of contacts

contacts required

there is

is no

no meaningful

meaningful difference

difference in

the level

level of

required

for personal

and Fourteenth

for

personal jurisdiction”

jurisdiction" under

under the

the Fifth

Fifth and

Fourteenth

Amendments. Ibid.

Ibid. (citations

omitted).

Amendments.

(citations omitted).

6

6

State.’”

Id. at

at 122,

122, 139

139 n.19

State."' Id.

n.19 (quoting

(quoting Goodyear

Goodyear

Dunlop Tires

S.A. v.

v. Brown,

Brown, 564

Dunlop

Tires Operations,

Operations, S.A.

564 U.S.

U.S. 915,

915,

919

(2011)).

919 (2011)).

Personal

as to

corporations,

Personal jurisdiction

jurisdiction as

to foreign

foreign corporations,

such as

as the

the Institute’s

almost always

always

such

Institute's members,

members, thus

thus almost

requires

specific jurisdiction.

these foreign

foreign

requires specific

jurisdiction. Because

Because these

companies have

to incorporate

incorporate or

or locate

companies

have elected

elected not

not to

locate

their principal

principal place

their

of business

business here,

place of

here, due

due process

process

limits

limits the

of a

a U.S.

U.S. court

court accordingly.

accordingly. To

be

the reach

reach of

To be

haled

court as

as a

a first-party

first-party defendant,

alleged

haled into

into court

defendant, the

the alleged

injury must

“arise out

out of

of or

or relate

foreign

injury

must "arise

relate to

to the

the foreign

corporation’s activities

activities in

forum State.”

corporation's

in the

the forum

State."

Helicopteros

Nacionales

de

Colombia,

S.A.

v.

Hall,

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466

466

414 (1984).

(1984).

U.S.

U.S. 408,

408, 414

Third-party

Third-party discovery

a foreign

foreign corporation

corporation is

is

discovery from

from a

no

because courts

courts typically

lack general

no different:

different: because

typically lack

general

jurisdiction,

be case-specific

jurisdiction, there

there must

must be

case-specific jurisdiction.

jurisdiction.

Several

courts of

of appeals

“translated” the

Several courts

appeals have

have "translated"

the

specific jurisdiction

specific

jurisdiction analysis

analysis to

to third-party

third-party discovery

discovery

requests.

See In

In re

Ruiz, 939

requests. See

re del

del Valle

Valle Ruiz,

939 F.3d

F.3d 520,

520, 529

529

(2d Cir.

Cir. 2019)

(2d

(citing Gucci

Am., 768

at 134).

134). See

See

2019) (citing

Gucci Am.,

768 F.3d

F.3d at

also Leibovitch,

Leibovitch, 852

at 690;

Application to

also

852 F.3d

F.3d at

690; Application

to

Enforce Admin.

Admin. Subpoenas

Duces Tecum

of the

SEC v.

v.

Enforce

Subpoenas Duces

Tecum of

the SEC

Knowles, 87

87 F.3d

1996). In

In that

Knowles,

F.3d 413,

413, 418–19

418-19 (10th

(10th Cir.

Cir. 1996).

that

context, the

lower courts

courts have

forumcontext,

the lower

have held

held that

that the

the forumstate contacts

contacts must

connect not

an "alleged

“alleged

state

must connect

not to

to an

injur[y],” Burger

Burger King

King Corp.

v. Rudzewicz,

Rudzewicz, 471

injur[y],"

Corp. v.

471 U.S.

U.S.

462,

but to

the "discovery

“discovery material

462, 472

472 (1985),

(1985), but

to the

material

sought.” Id.

Id. See

See also

also Knowles,

Knowles, 87

87 F.3d

at 418–19;

sought."

F.3d at

418-19;

7

7

Leibovitch,

at 690

connection

Leibovitch, 852

852 F.3d

F.3d at

690 (assessing

(assessing connection

between forum-state

forum-state contacts

contacts and

and the

“subpoenas”).

between

the "subpoenas").

Critically,

of these

circuits has

“required

Critically, each

each of

these circuits

has "required

entity's in-forum

some causal

causal relationship

between an

an entity’s

in-forum

some

relationship between

contacts and

at issue"

issue” and

and carried

carried that

contacts

and the

the proceeding

proceeding at

that

limitation over

over to

to the

context of

of third-party

third-party discovery.

limitation

the context

discovery.

del

Ruiz, 939

at 530

(emphasis in

in original).3

original).3

del Valle

Valle Ruiz,

939 F.3d

F.3d at

530 (emphasis

And this

view of

of specific

specific jurisdiction

And

this restrained

restrained view

jurisdiction has

has

served as

a critical

critical check

check on

on attempts

attempts to

to obtain

obtain

served

as a

discovery

overseas business

business from

banks

discovery regarding

regarding overseas

from banks

based abroad.

See Leibovitch,

Leibovitch, 852

at 689-90.

689–90.

based

abroad. See

852 F.3d

F.3d at

In Leibovitch,

survivors of

of a

terrorist

In

Leibovitch, for

for example,

example, survivors

a terrorist

attack

in

J

erusalem

obtained

a

default

judgment

of

attack in Jerusalem obtained a default judgment of

$67 million

million against

$67

against the

the Republic

of Iran

Iran in

a federal

federal

Republic of

in a

district

court in

in Chicago.

Id. at

at 689.

district court

Chicago. Id.

689. In

In attempting

attempting to

to

collect, the

subpoenaed two

banks

collect,

the plaintiffs

plaintiffs subpoenaed

two banks

incorporated and

and headquartered

abroad but

but with

with

incorporated

headquartered abroad

branches in

information about

about

branches

in Chicago,

Chicago, requesting

requesting information

the

of all

all 7,500

of those

the Iranian

Iranian holdings

holdings of

7,500 branches

branches of

those

banks, worldwide.

worldwide. Id.

Id. The

The Seventh

concluded

banks,

Seventh Circuit

Circuit concluded

there

was no

specific jurisdiction,

that the

there was

no specific

jurisdiction, holding

holding that

the

banks'

banks’ American

American branches

branches did

cause the

did not

not cause

the requested

requested

information to

because those

branches did

information

to exist

exist because

those branches

did not,

not,

the

themselves,

information (or

any of

of the

themselves, have

have that

that information

(or hold

hold any

Iranian accounts).

at 690.

690.

Iranian

accounts). See

See id.

id. at

3 See

See also

also uBID,

Inc. v.

v. GoDaddy

Inc., 623

623 F.3d

GoDaddy Group,

Group, Inc.,

F.3d 421,

421,

3

uBID, Inc.

430

(7th Cir.

2010) (recognizing

causation requirement

for

requirement for

430 (7th

Cir. 2010)

(recognizing causation

specific jurisdiction);

Dudnikov v.

Fine Arts,

Arts,

specific

jurisdiction); Dudnikov

v. Chalk

Chalk &

& Vermilion

Vermilion Fine

Inc.,

514 F.3d

Inc., 514

1063, 1078

1078 (10th

(10th Cir.

2008) (Gorsuch,

(Gorsuch, J.)

J.) (same).

F.3d 1063,

Cir. 2008)

(same).

8

8

Under

a looser

looser "relatedness"

“relatedness” standard

standard like

like that

Under a

that

adopted below,

below, the

the result

would likely

likely have

been

adopted

result would

have been

different.

below held

that Petitioner’s

different. The

The decisions

decisions below

held that

Petitioner's

advertising and

sale of

of other

other similar

similar cars

cars in

in forum

forum

advertising

and sale

states was

was sufficiently

sufficiently "related"

“related” to

specific

states

to establish

establish specific

jurisdiction,

though those

those other

other cars

cars bore

bore no

jurisdiction, even

even though

no

causal relationship

the relevant

accidents.

causal

relationship to

to the

relevant accidents.

Translated to

context, the

standard

Translated

to the

the discovery

discovery context,

the standard

adopted

below

would

allow

courts

to

compel

adopted below would allow courts to compel

international banks

banks to

to produce

international

produce documents

documents and

and

information concerning

concerning overseas

overseas accounts

accounts or

or other

other

information

overseas business

business merely

because such

such business

business is

overseas

merely because

is

similar to

by their

American branches.

branches.

similar

to that

that held

held by

their American

Leibovitch

likely

would

have

found

the

bank’s

Leibovitch likely would have found the bank's Chicago

Chicago

contacts "related"

“related” to

the discovery

sought, since

since the

the

contacts

to the

discovery sought,

Chicago

branches held

same types

of accounts

and

Chicago branches

held the

the same

types of

accounts and

information

information as

as the

other 7,500.

the other

7,500. This

This would

would have

have

effectively

general jurisdiction

jurisdiction on

on an

an

effectively exercised

exercised general

international third-party

bank simply

simply for

“doing

international

third-party bank

for "doing

business”—a practice

in

business"—a

practice this

this Court

Court expressly

expressly rejected

rejected in

Daimler.

Daimler.

This sort

sort of

of sweeping

sweeping jurisdiction

in the

the context

context of

of

This

jurisdiction in

third-party

would have

significant

third-party discovery

discovery would

have significant

ramifications. First,

ramifications.

First, it

it likely

likely would

would discourage

discourage

international

international banks

banks from

from operating

operating branches

branches within

within

the

The very

very point

of the

specific

point of

the specific

the United

United States.

States. The

jurisdiction

is "to

“to allow

a [person]

[person] to

to

jurisdiction analysis

analysis is

allow a

anticipate his

based on

on his

anticipate

his jurisdictional

jurisdictional exposure

exposure based

his

own actions."

actions.” Dudnikov,

Dudnikov, 514

at 1079.

1079. In

In the

own

514 F.3d

F.3d at

the

context of

of third-party

broad relatedness

context

third-party discovery,

discovery, a

a broad

relatedness

standard

creates

uncertainty

rather

than

than

standard

creates

uncertainty

rather

9

9

even a

predictability

for international

international banks.

banks. If

If even

a small

small

predictability for

foothold would

open their

overseas business

business to

foothold

would open

their entire

entire overseas

to

the

of U.S.

U.S. courts,

courts, banks

banks might

might

the discovery

discovery practices

practices of

think

before doing

business here.

As the

think twice

twice before

doing business

here. As

the United

United

States

once explained

“the inability

inability to

to

States once

explained to

to this

this Court,

Court, "the

predict

consequences of

of commercial

commercial

predict the

the jurisdictional

jurisdictional consequences

or

or investment

investment activity"

activity” in

in the

the United

United States

would

States would

likely

likely cause

cause foreign

foreign businesses

businesses to

to be

be "reluctant

“reluctant to

to

invest

or

do

business”

here.

Br.

for

the

United

States

invest or do business" here. Br. for the United States

as Amicus

Amicus Curiae

Petitioner at

at 2,

as

Curiae Supporting

Supporting Petitioner

2,

DaimlerChrysler AG

AG v.

v. Bauman,

Bauman, 571

117 (2014)

(2014)

U.S. 117

DaimlerChrysler

571 U.S.

(No.

11-965), 2013

WL 3377321

at *2.

*2.

(No. 11-965),

2013 WL

3377321 at

Second, like

“expansive view

view of

of general

Second,

like the

the "expansive

general

jurisdiction”

this

Court

recently

rejected

in

Daimler,

jurisdiction" this Court recently rejected in Daimler,

the

an expansive

view of

of specific

specific jurisdiction

in the

an

expansive view

jurisdiction in

context of

of third-party

third-party discovery

would pose

“risks to

to

context

discovery would

pose "risks

international comity."

comity.” 571

at 141.

141. "Great

“Great care

care

international

571 U.S.

U.S. at

and reserve

should be

be exercised

when extending

our

and

reserve should

exercised when

extending our

notions

of personal

into the

international

notions of

personal jurisdiction

jurisdiction into

the international

field.” Asahi

Asahi Metal

Metal Indus.

Indus. Co.,

v. Super.

of

field."

Co., Ltd.

Ltd. v.

Super. Ct.

Ct. of

California,

Solano County,

U.S. 102,

102, 115

115 (1987)

California, Solano

County, 480

480 U.S.

(1987)

(internal

citation omitted).

omitted). And

And

(internal quotation

quotation marks

marks and

and citation

for good

overreach has,

in the

the

for

good reason—jurisdictional

reason—jurisdictional overreach

has, in

international

past,

“impeded negotiations

of international

past, "impeded

negotiations of

agreements” and

and "led

“led to

international friction."

friction.”

agreements"

to international

Daimler, 571

at 141-42.

141–42.

U.S. at

Daimler,

571 U.S.

One

source of

of such

such friction

friction is

is conflict

conflict between

between

One source

American discovery

orders and

and foreign

banking or

or

foreign banking

American

discovery orders

privacy

laws. This

This Court

foreign

privacy laws.

Court has

has held

held that

that foreign

“statutes do

American court

court of

of the

the

"statutes

do not

not deprive

deprive an

an American

10

10

power

to order

order a

a party

subject to

its jurisdiction

power to

party subject

to its

jurisdiction to

to

produce

the act

act of

of production

produce evidence

evidence even

even though

though the

production

may

may violate

violate that

statute.”

Societe Nationale

Nationale

that statute."

Societe

Industrielle Aerospatiale

Aerospatiale v.

v. U.S.

Dist. Ct.

for S.

S. Dist.

Dist.

Industrielle

U.S. Dist.

Ct. for

of Iowa,

Iowa, 482

of

482 U.S.

U.S. 522,

522, 544

544 n.29

n.29 (1987).

(1987). Thus,

Thus, the

the

Institute’s members

could find

themselves caught

caught

Institute's

members could

find themselves

production

between a

order requiring

between

a U.S.

U.S. discovery

discovery order

requiring production

of

of information

information located

overseas and

and a

a foreign

law

located overseas

foreign law

prohibiting

of

that

same

information.

See

prohibiting production

production of that same information. See

Richmark Corp.

v. TTimber

imber Falling

Falling Consultants,

Richmark

Corp. v.

Consultants, 959

959

F.2d

1468, 1478

1478 (9th

1992) (upholding

F.2d 1468,

Cir. 1992)

discovery

(9th Cir.

(upholding discovery

order that

that required

violation of

of Chinese

order

required violation

Chinese privacy

privacy law);

law);

In re

Proceedings, 691

1384, 1389

1389

In

re Grand

Grand Jury

Jury Proceedings,

691 F.2d

F.2d 1384,

(11th

1982) (same,

violation of

of

(11th Cir.

Cir. 1982)

(same, requiring

requiring violation

Bahamian bank

Bahamian

bank secrecy

secrecy laws);

laws); Arthur

Arthur Andersen

Andersen &

& Co.

Co.

v. Finesilver,

Finesilver, 546

1976)

v.

546 F.2d

F.2d 338,

338, 340–42

340-42 (10th

(10th Cir.

Cir. 1976)

(same, requiring

(same,

violation of

of Swiss

requiring violation

Swiss privacy

privacy laws).

laws).

Making

Making matters

worse, it

it may

always be

be clear

clear to

matters worse,

may not

not always

to

an American

American court

court whether

whether its

its discovery

order has

an

discovery order

has

created such

such a

a conflict,

conflict, since

since foreign

law is

is "beyond

“beyond

created

foreign law

the

of our

our federal

courts or

or their

competence.”

the ken

ken of

federal courts

their competence."

U.S.

v. First

First Nat.

Nat. City

Bank, 379

U.S. 378,

U.S. v.

City Bank,

379 U.S.

378, 384

384 (1965)).

(1965)).

See also

also Gucci,

at 139

139 (discussing

(discussing an

See

Gucci, 768

768 F.3d

F.3d at

an

“apparent conflict”

between a

a district

court’s asset

asset

"apparent

conflict" between

district court's

freeze

freeze injunction

injunction and

and "Chinese

“Chinese banking

banking law").

law”).

The "significant"

“significant” differences

“between discovery

The

differences "between

discovery

practices

in the

United States

and those

in other

other

practices in

the United

States and

those in

countries” only

only exacerbate

conflicts. See

See Societe

Societe

countries"

exacerbate these

these conflicts.

Nationale, 482

at 549

(Blackmun, J.,

J., concurring

concurring

Nationale,

482 U.S.

U.S. at

549 (Blackmun,

in

in part).

part). For

For example,

example, "[m]ost

“[m]ost civil-law

civil-law systems

systems lack

lack

procedures

analogous to

regime

procedures analogous

to the

the pretrial

pretrial discovery

discovery regime

11

11

operative under

of Civil

operative

under the

the Federal

Federal Rules

Rules of

Civil Procedure.”

Procedure."

Intel Corp.

v. Advanced

Advanced Micro

Micro Devices,

Devices, Inc.,

Inc., 542

Intel

Corp. v.

542 U.S.

U.S.

241,

Indeed, "no

“no aspect

aspect of

of the

241, 261

261 n.12

n.12 (2004).

(2004). Indeed,

the

extension

extension of

of the

the American

American legal

legal system

system beyond

beyond the

the

territorial

territorial frontier

frontier of

of the

the United

United States

States has

has given

given rise

rise

to

so much

friction as

for documents

to so

much friction

as the

the request

request for

documents

the

associated with

with investigation

and litigation

litigation in

in the

associated

investigation and

United

Nationale, 482

at 549

United States.”

States." Societe

Societe Nationale,

482 U.S.

U.S. at

549

(Blackmun,

J., concurring

concurring in

in part)

(citation

omitted).

(Blackmun, J.,

part) (citation omitted).

Adoption of

of a

broad relatedness

standard governing

Adoption

a broad

relatedness standard

governing

specific jurisdiction

would invite

invite third-party

third-party

specific

jurisdiction would

subpoenas of

of increasing

increasing frequency

scope to

subpoenas

frequency and

and scope

to the

the

Institute’s members,

conflict and

and

promising more

more conflict

Institute's

members, promising

undermining "international

undermining

“international rapport.”

See

Daimler,

rapport." See Daimler,

571

at 142.

142. The

Due Process

571 U.S.

U.S. at

The Due

Process Clause

Clause does

does not

not

require

such a

a result.

require such

result.

II.

II. A

A Broad

Standard Would

Would

Broad Relatedness

Relatedness Standard

Dramatic ally Expand

Expand Discovery

Disc overy in

Aid of

Dramatically

in Aid

of

Foreign

28 U.S.C.

U.S.C. §

§ 1782.

1782.

Foreign Proceedings

Proceedings under

under 28

Should

this Court

affirm the

the decisions

below, the

the

Should this

Court affirm

decisions below,

consequences would

would travel

than third-party

third-party

consequences

travel farther

farther than

discovery

in domestic

litigation. Under

a recent

discovery in

domestic litigation.

Under a

recent

Second

a broad

broad relatedness

standard

Second Circuit

Circuit decision,

decision, a

relatedness standard

for

for specific

specific jurisdiction

also expand

jurisdiction would

would also

expand discovery

discovery

for use

in foreign

foreign proceedings

1782.

for

use in

proceedings under

under 28

28 U.S.C.

U.S.C. §§ 1782.

Section

1782 provides

“federal-court assistance

assistance in

Section 1782

provides "federal-court

in

gathering

for use

in foreign

foreign tribunals.”

Intel,

gathering evidence

evidence for

use in

tribunals." Intel,

542

at 247.

its terms,

1782 authorizes

authorizes

Section 1782

542 U.S.

U.S. at

247. By

By its

terms, Section

“[t]he district

court of

of the

the district

in which

which a

a person

person

"[t]he

district court

district in

12

12

resides

or is

is found"

found” to

“order him

testimony

resides or

to "order

him to

to give

give his

his testimony

or statement

statement or

or to

a document

or other

other thing

thing

or

to produce

produce a

document or

for use

in a

a proceeding

in a

a foreign

foreign or

or international

international

for

use in

proceeding in

tribunal”

on the

of that

or an

an

tribunal" on

the application

application of

that tribunal

tribunal or

“interested person.”

§ 1782(a).

1782(a). If

If those

those

"interested

person." 28

28 U.S.C.

U.S. C. §

statutory requirements

are met,

the district

court has

statutory

requirements are

met, the

district court

has

discretion

order discovery,

considering factors

factors

discretion to

to order

discovery, considering

prescribed

by this

this Court.

Intel, 542

U.S. at

at 247.

247. By

By

prescribed by

Court. Intel,

542 U.S.

“provid[ing] efficient

means

of

assistance

in

our

"provid[ing]

efficient means of assistance in our

international

federal courts

courts for

for litigants

litigants involved

involved in

in international

federal

litigation,” Congress

to "prompt

“prompt foreign

foreign courts

litigation,"

Congress hoped

hoped to

courts

to

follow our

our generous

and provide

similar

provide similar

to follow

generous example

example and

assistance to

our court

court systems."

systems.” S.Rep.

1580,

assistance

to our

S.Rep. No.

No. 1580,

88th

Cong.,

2d

Sess.

(1964),

reprinted

in

1964

88th Cong., 2d Sess. (1964), reprinted in 1964

U.S.C.C.A.N.

3792–94.

U.S.C.C.A.N. 3782,

3782, 3792-94.

Over

courts have

1782

Over time,

time, courts

have given

given Section

Section 1782

"increasingly

“increasingly broad

broad applicability."

applicability.” Brandi-Dohrn,

Brandi-Dohrn, 673

673

F.3d

at 80

80 (internal

and citation

citation

F.3d at

(internal quotation

quotation marks

marks and

omitted). For

courts have

that an

omitted).

For example,

example, courts

have held

held that

an

“interested person”

before filing

filing a

"interested

person" need

need not,

not, before

a Section

Section

1782

1782 petition,

first make

a discovery

petition, first

make a

discovery request

request to

to the

the

foreign tribunal

which the

is

foreign

tribunal in

in which

the underlying

underlying proceeding

proceeding is

pending.

Application of

of Malev

Malev Hungarian

Hungarian Airlines,

Airlines,

pending. Application

964

100 (2d

1992). Courts

also held

964 F.2d

F.2d 97,

97, 100

(2d Cir.

Cir. 1992).

Courts have

have also

held

that

“proceeding” does

be "pending"

“pending” or

or

that a

a "proceeding"

does not

not have

have to

to be

even

“imminent”—it just

has to

be "within

“within reasonable

even "imminent"—it

just has

to be

reasonable

contemplation,"

contemplation,” meaning

meaning "more

“more than

than a

a twinkle

twinkle in

in

counsel’s eye.”

Funds, Accounts

Accounts and/or

and/or Inv.

Inv.

counsel's

eye." Certain

Certain Funds,

798 F.3d

F.3d 113,

Vehicles

v. KPMG,

KPMG, L.L.P.,

113, 123-24

123–24 (2d

(2d

Vehicles v.

L.L.P., 798

Cir. 2015).

Cir.

2015).

13

13

Most recently,

Most

recently, the

the Second

Second and

and Eleventh

Eleventh Circuits

Circuits

have

apply the

against

have declined

declined to

to apply

the presumption

presumption against

extraterritoriality

1782, thereby

thereby permitting

extraterritoriality to

to Section

Section 1782,

permitting

discovery

of documents

discovery of

documents located

located abroad.

abroad. del

del Valle

Valle

Ruiz, 939

939 F.3d

at 533;

Sergeeva v.

v. Tripleton

Intl. Ltd.,

Ltd.,

Ruiz,

F.3d at

533; Sergeeva

Tripleton Intl.

(11th Cir.

Cir. 2016).

2016). Although

this

834

1194, 1200

1200 (11th

Although this

834 F.3d

F.3d 1194,

Court

applies "in

“in

Court has

has directed

directed that

that the

the presumption

presumption applies

all cases,"

cases,” Morrison

Morrison v.

v. Natl.

Natl. Australia

Australia Bank

Bank Ltd.,

Ltd., 561

all

561

U.S.

247,

261

(2010),

the

Second

Circuit

saw

“no

U.S. 247, 261 (2010), the Second Circuit saw "no

reason”

apply it

it "to

“to a

a strictly

strictly jurisdictional

statute

reason" to

to apply

jurisdictional statute

not

otherwise tethered

conduct or

or

not otherwise

tethered to

to regulating

regulating conduct

providing

a cause

cause of

of action."

action.” del

Ruiz, 939

939 F.3d

providing a

del Valle

Valle Ruiz,

F.3d

at 532

Kiobel v.

v. Royal

Royal Dutch

Dutch Petroleum

Petroleum Co.,

at

532 (citing

(citing Kiobel

Co.,

569

U.S.

108,

113

(2013)).

But

see

Kestrel

Coal

Pty.

569 U.S. 108, 113 (2013)). But see Kestrel Coal Pty.

Cir.

Ltd.

v. Joy

Inc., 362

(7th Cir.

Ltd. v.

Joy Glob.,

Glob., Inc.,

362 F.3d

F.3d 401,

401, 404

404 (7th

2004)

“whether §

§ 1782

1782 ever

a

2004) (questioning

(questioning "whether

ever permits

permits a

district

be imported

imported from

district judge

judge to

to require

require evidence

evidence to

to be

from

a foreign

foreign nation

so that

it may

be handed

handed over

over here

a

nation so

that it

may be

here

and then

then exported”);

Four Pillars

Pillars Enterprises

Enterprises Co.,

and

exported"); Four

Co., Ltd.

Ltd.

v. Avery

Avery Dennison

Dennison Corp.,

1075, 1079

1079 (9th

v.

Corp., 308

308 F.3d

F.3d 1075,

(9th Cir.

Cir.

2002)

“support” for

for the

view that

1782

2002) (noting

(noting "support"

the view

that Section

Section 1782

does

not "encompassl]

“encompass[] the

the discovery

of material

does not

discovery of

material

located in

in foreign

foreign countries").

countries”).

located

The

The judicial

of Section

1782’s reach

judicial expansion

expansion of

Section 1782's

reach has

has

corresponded with

with an

an increase

in the

of

the number

number of

corresponded

increase in

petitions

seeking discovery

statute. In

the

petitions seeking

discovery under

under that

that statute.

In the

past

year alone,

alone, district

courts ruled

on over

over 65

65

past year

district courts

ruled on

petitions,

than four

four times

petitions, more

more than

times the

the number

number decided

decided

ten

years ago.

See Appendix

Appendix 1

1 (listing

(listing cases).

cases). And

And

ten years

ago. See

even

so than

even more

more so

than domestic

domestic third-party

third-party discovery,

discovery,

discovery

1782 disproportionately

discovery under

under Section

Section 1782

disproportionately

14

14

impacts the

Institute’s member

institutions. As

As the

the

impacts

the Institute's

member institutions.

statute’s principal

Professor Hans

Hans Smit,

Smit,

statute's

principal drafter,

drafter, Professor

wrote, "[i]t

“[i]t is

is no

coincidence that

of the

cases

wrote,

no coincidence

that most

most of

the cases

concerning the

of evidence

be produced

concerning

the production

production of

evidence to

to be

produced

or to

to be

be obtained

obtained abroad

banks doing

or

abroad have

have involved

involved banks

doing

business in

the United

States and

and abroad.”

American

business

in the

United States

abroad." American

Assistance to

Foreign and

and International

International

Assistance

to Litigation

Litigation in

in Foreign

TTribunals:

ribunals: Section

Section 1782

1782 of

of TTitle

itle 28

28 of

of the

the U.S.C.

U.S.C.

Revisited,

25

Syracuse

J.

Intl.

L.

&

Com.

1,

11

(1998).

1,

11

(1998).

Revisited, 25 Syracuse J. Intl. L. & Com.

In the

face of

of this

in both

both statutory

statutory

In

the face

this expansion

expansion in

reach

the number

of petitions,

the most

reach and

and the

number of

petitions, the

most

meaningful

limit on

on Section

1782 remains

first

meaningful limit

Section 1782

remains the

the first

statutory

requirement—that

the

respondent

statutory

requirement—that

the

respondent

“reside[]” or

or be

be "found"

“found” in

in the

"resider

the relevant

relevant judicial

judicial district.

district.

But

been stretched.

stretched.

But that

that requirement

requirement too

too has

has recently

recently been

At least

one court

court has

language required

At

least one

has held

held that

that the

the language

required

a court

court to

to have

over an

an entity

to

a

have general

general jurisdiction

jurisdiction over

entity to

order discovery

1782. In

In re

Sargeant,

order

discovery under

under Section

Section 1782.

re Sargeant,

278

821 (S.D.N.Y.

year,

278 F.

F. Supp.

(S.D.N.Y. 2017).

Supp. 3d

3d 814,

814, 821

2017). Last

Last year,

however,

the Second

however, the

Second Circuit

Circuit held

held that

that the

the term

term

“found” "extends

“extends to

to the

of personal

jurisdiction,"

"found"

the limits

limits of

personal jurisdiction,”

embracing

specific as

as well

embracing specific

well as

as general

general jurisdiction.

jurisdiction. del

del

Valle

Ruiz, 939

at 527–28.

Valle Ruiz,

939 F.3d

F.3d at

527-28.

That specific

specific jurisdiction

causal

That

jurisdiction requires

requires a

a causal

relationship

between a

a respondent’s

contacts and

and the

relationship between

respondent's contacts

the

discovery

sought is,

is, therefore,

therefore, critical

critical to

to limiting

limiting an

an

discovery sought

otherwise unfettered

of Section

1782. Take

Take

otherwise

unfettered expansion

expansion of

Section 1782.

del

Ruiz. There,

U.S. and

and Mexican

Mexican investors

investors

del Valle

Valle Ruiz.

There, U.S.

filed Section

1782 petitions

seeking information

information from

petitions seeking

from

filed

Section 1782

a Spanish

bank about

about its

its government-facilitated

a

Spanish bank

government-facilitated

15

15

acquisition of

of another

another Spanish

bank, purportedly

for

purportedly for

acquisition

Spanish bank,

use

in proceedings

and the

the European

Union.

European Union.

use in

proceedings in

in Spain

Spain and

Id. at

at 523,

Unsurprisingly, almost

almost all

all of

of the

the

Id.

523, 525.

525. Unsurprisingly,

discovery

sought regarding

acquisition was

was

discovery sought

regarding the

the acquisition

located overseas.

overseas. See

See id.

at 531.

specific

located

id. at

531. To

To establish

establish specific

investors relied

relied primarily

primarily on

jurisdiction,

on a

a

jurisdiction, the

the investors

number

of New

York-based contacts

by the

number of

New York-based

contacts by

the Spanish

Spanish

bank that

occurred after

after the

the transaction.

Id. at

at 531.

bank

that occurred

transaction. Id.

531.

The Second

affirmed

the

denial

of

the

The

Second Circuit

affirmed

Circuit

the denial of the

petitions,

concurring with

with the

court’s

petitions, concurring

the district

district court's

conclusion that

that those

those contacts

contacts could

could not

bear even

a

conclusion

not bear

even a

“but for”

causal connection

connection to

sought

"but

for" causal

to the

the discovery

discovery sought

because they

acquisition. Ibid.

Ibid.

because

they post-dated

post-dated the

the acquisition.

Under

broader relatedness

Under the

the broader

relatedness doctrine

doctrine embraced

embraced

by the

the state

state high

courts below,

below, those

by

high courts

those post-acquisition

post-acquisition

contacts might

sufficed to

to establish

specific

contacts

might have

have sufficed

establish the

the specific

jurisdiction

Ruiz to

order

jurisdiction necessary

necessary under

under del

del Valle

Valle Ruiz

to order

discovery

1782.

It is

is literally

literally

It

discovery under

under Section

Section 1782.

impossible for

for the

contacts to

impossible

the post-acquisition

post-acquisition contacts

to have

have

caused the

information sought,

sought, but

but a

caused

the pre-acquisition

pre-acquisition information

a

court certainly

certainly might

found that

such contacts

contacts

court

might have

have found

that such

were related

the desired

And if

so, a

a

information. And

if so,

were

related to

to the

desired information.

United

would have

had authority

order

United States

States court

court would

have had

authority to

to order

a Spanish

bank to

about

a

Spanish bank

to produce

produce Spanish

Spanish documents

documents about

a transaction

with another

another Spanish

bank so

so those

a

transaction with

Spanish bank

those

documents

could then

be used

in Spanish

and

documents could

then be

used in

Spanish and

European

Id. at

at 523.

Under the

European courts.

courts. Id.

523. Under

the decisions

decisions

below, the

specific jurisdiction

limit imposed

by the

the

imposed by

below,

the specific

jurisdiction limit

Second

in del

Ruiz on

on Section

1782

Second Circuit

Circuit in

del Valle

Valle Ruiz

Section 1782

would be

be virtually

virtually no

limit at

at all.

all. A

A federal

would

no limit

federal district

district

court could,

could, under

1782, require

an

require an

court

under Section

Section 1782,

16

16

international bank

bank to

any documents

or

international

to provide

provide any

documents or

information regarding

overseas accounts

accounts or

or services

services

information

regarding overseas

so long

long as

the bank

bank had

branch or

or offered

offered some

some

so

as the

had a

a branch

services in

services

in that

that district.

district.

Application of

of a

a broad

broad relatedness

standard to

Application

relatedness standard

to

Section

1782 would

the problems

Section 1782

would magnify

magnify the

problems discussed

discussed

in Part

on a

a global

scale. First,

First, by

by overinflating

overinflating

in

Part II on

global scale.

jurisdictional

for international

international banks,

banks, a

a

jurisdictional exposure

exposure for

broader

Section

1782

would

further

discourage

broader Section 1782 would further discourage

international commerce.

commerce. The

Institute’s members

international

The Institute's

members

would not

only risk

an increasing

increasing

entanglement in

in an

would

not only

risk entanglement

number

of American

American disputes,

in Part

I.

number of

disputes, as

as described

described in

Part I.

By

business in

United States,

they would

would

By doing

doing business

in the

the United

States, they

also

risk

opening

themselves

to

American-style

also risk opening themselves to American-style

discovery

in disputes

anywhere in

in the

discovery in

disputes they

they have

have anywhere

the

world.

world.

Second, a

a further

further expansion

of Section

1782 would

would

Second,

expansion of

Section 1782

also create

create greater

threats to

international comity

comity by

by

also

greater threats

to international

generating

all the

the same

same risks

in Section

generating all

risks discussed

discussed in

Section I,

I,

plus

Without a

of

meaningful requirement

requirement of

plus more.

more.

Without

a meaningful

specific jurisdiction,

1782 would

would invite

invite

specific

jurisdiction, Section

Section 1782

litigants to

courts into

into clearinghouses

clearinghouses for

for

litigants

to turn

turn U.S.

U.S. courts

disputes

that have

And because

because this

disputes that

have no

no U.S.

U.S. nexus.

nexus. And

this

Court

1782 can

can authorize

Court has

has held

held that

that Section

Section 1782

authorize

discovery

whether or

or not

it would

be allowed

discovery whether

not it

would be

allowed in

in the

the

underlying foreign

underlying

foreign proceeding,

an unchecked

proceeding, an

unchecked Section

Section

1782 would

would be

be an

an even

brighter beacon

beacon for

1782

even brighter

for those

those

seeking specifically

specifically to

obtain discovery

seeking

to obtain

discovery that

that they

they have

have

been denied

or would

be prohibited

Intel, 542

been

denied or

would be

prohibited abroad.

abroad. Intel,

542

U.S.

at 253

“foreign-discoverability

U.S. at

253 (rejecting

(rejecting a

a "foreign-discoverability

17

17

requirement”).

international conflict

conflict would

would

requirement"). Greater

Greater international

ensue.

See also

also Smit,

American Assistance,

Assistance, 25

ensue. See

Smit, American

25

Syracuse

J. Intl.

Intl. L.

at 12

12 ("It

(“It is

is one

one thing

for

Com. at

thing for

Syracuse J.

L. &

& Com.

[an]

American court

insist that

its procedures

be

[an] American

court to

to insist

that its

procedures be

used

in aid

aid of

of American

American litigation

but quite

another to

used in

litigation but

quite another

to

impose them

on actions

actions brought

brought in

in foreign

foreign courts.").

courts.”).

impose

them on

As

Smit warned,

As Professor

Professor Smit

warned, "if

“if American

American courts

courts were

were

to

assume the

of clearing

clearing house

world-wide

to assume

the role

role of

house for

for world-wide

information gathering,

conflicts with

with foreign

countries

information

gathering, conflicts

foreign countries

would inevitably

inevitably arise."

arise.” Id.

Id.

would

CONCLUSION

CONCLUSION

The

decisions

below

have

far-reaching

far-reaching

The

decisions

below

have

consequences not

for prospective

but

consequences

not just

just for

prospective defendants,

defendants, but

also

prospective

discovery

respondents

like

also prospective discovery respondents like the

the

Institute’s international

international banking

banking members.

If a

a third

members. If

third

Institute's

party’s

contacts with

only bear

bear some

some

party's contacts

with the

the forum

forum need

need only

relation

sought, those

would

relation to

to the

the discovery

discovery sought,

those parties

parties would

be exposed

sweeping discovery

in both

both domestic

be

exposed to

to sweeping

discovery in

domestic and

and

foreign disputes.

and those

stated

foreign

disputes. For

For these

these reasons

reasons and

those stated

in Petitioner’s

brief, the

of the

Montana and

and

in

Petitioner's brief,

the decisions

decisions of

the Montana

Minnesota Supreme

should be

be reversed.

Minnesota

Supreme Courts

Courts should

reversed.

18

18

March 6,

6, 2020

March

2020

Respectfully

submitted,

Respectfully submitted,

Elbert

Elbert Lin

Lin

Counsel

of Record

Record

Counsel of

Johnathon E.

Johnathon

E. Schronce

Schronce

David M.

Parker

David

M. Parker

J. Pierce

J.

Pierce Lamberson

Lamberson

H

UNTON ANDREWS

ANDREWS K

URTH LLP

HUNTON

KURTH

LLP

951

Tower

951 East

East Byrd

Byrd Street,

Street, East

East Tower

Richmond,

Virginia 23219

Richmond, Virginia

23219

Phone:

Phone: (804)

(804) 788-8200

788-8200

elin@HuntonAK.com

elin@HuntonAK.com

Counsel

for Amicus

Amicus Curiae

Counsel for

Curiae

APPENDIX

APPENDIX

APPENDIX 1

1

A) Federal

A)

Federal district

district courts

courts have

have ruled

ruled on

on

approximately sixty-six

sixty-six 28

§ 1782

1782

approximately

28 U.S.C.

U.S.C. §

applications

since

March

6,

2019.

applications since March 6, 2019.

1.

1.

2.

2.

3.

3.

4.

4.

5.

5.

6.

6.

7.

7.

8.

8.

9.

9.

In

In re

Eleanor de

WL 1047742,

1047742, at

at *1

*1

re Eleanor

de Leon,

Leon, 2020

2020 WL

(D.D.C.

(D.D.C. Mar.

Mar. 4,

4, 2020).

2020).

In re

Nagatsuki Association,

Association, 2020

WL 887890,

887890,

In

re Nagatsuki

2020 WL

*1 (N.D.

24, 2020).

*1

(N.D. Cal.

Cal. Feb.

Feb. 24,

2020).

Request From

From First

First Instance

Instance National

National Civil

Request

Civil

Court

No. 94

Buenos Aires,

Aires, Argentina

Argentina for

for

Court No.

94 in

in Buenos

Documents From

From Apple,

Apple, Inc.,

Inc., 2020

WL 807489,

807489,

Documents

2020 WL

*1 (N.D.

18, 2020).

*1

(N.D. Cal.

Cal. Feb.

Feb. 18,

2020).

In re

Application of

of Shervin

Shervin Pishevar

Pishevar for

for an

an

In

re Application

Order

Discovery for

for use

Foreign

Order to

to take

take Discovery

use in

in Foreign

Proceedings Pursuant

Pursuant to

28 U.S.C.

§ 1782,

1782,

Proceedings

to 28

U.S.C. §

2020

WL 769445,

*1 (S.D.N.Y.

18, 2020).

769445, *1

(S.D.N.Y. Feb.

Feb. 18,

2020).

2020 WL

733182, *1

(N.D. Cal.

Cal.

In re

Hopkins, 2020

WL 733182,

*1 (N.D.

In

re Hopkins,

2020 WL

Feb. 13,

Feb.

13, 2020).

2020).

Matter of

of HES

HES (Caribbean)

(Caribbean) International

International

Matter

728892, *1

Holdings, S.R.L.,

WL 728892,

*1 (D.N.J.

(D.N.J.

Holdings,

S.R.L., 2020

2020 WL

Feb. 13,

Feb.

13, 2020).

2020).

In re

Aenergy, S.A.,

2020 WL

WL 615108,

*1

S.A., 2020

615108, *1

In

re Aenergy,

(S.D.N.Y.

(S.D.N.Y. Feb.

Feb. 07,

07, 2020).

2020).

In re

Request for

for Judicial

Assistance From

From

In

re Request

Judicial Assistance

Obolonskyi

District Court

Kyiv, Ukraine,

Obolonskyi District

Court in

in Kyiv,

Ukraine,

2020

WL 571032,

*1, N.D.Cal.

2020 WL

571032, *1,

N.D.Cal. (Feb.

(Feb. 05,

05, 2020).

2020).

550271, *1

(S.D.N.Y.

In re

Dickson, 2020

WL 550271,

*1 (S.D.N.Y.

In

re Dickson,

2020 WL

Feb. 04,

04, 2020).

Feb.

2020).

2a

2a

10. In

In re

Bio Energias

Energias Comercializadora

10.

re Bio

Comercializadora de

de

Fla.

Energia Ltda.,

WL 509987,

*1 (S.D.

Energia

Ltda., 2020

2020 WL

509987, *1

(S.D. Fla.

2020).

Jan. 31,

Jan.

31, 2020).

11. In

In re

Aluminum Warehousing

Antitrust

11.

re Aluminum

Warehousing Antitrust

Litigation,

2020 WL

WL 505042,

505042, *1

*1 (S.D.N.Y.

(S.D.N.Y. Jan.

Jan.

Litigation, 2020

31, 2020).

31,

2020).

12. In

In re

Matrix Holdings

Ltd., 2020

2020 WL

WL

12.

re Top

Top Matrix

Holdings Ltd.,

248716,

*1 (S.D.N.Y.

(S.D.N.Y. Jan.

Jan. 16,

16, 2020).

248716, *1

2020).

Technologies (NA),

LLC v.

v. BBK

13. Republic

Republic Technologies

(NA), LLC

BBK

13.

Tobacco

Foods, LLP,

LLP, 2020

WL 208825,

*1

2020 WL

208825, *1

Tobacco &

& Foods,

(N.D.

Ill. Jan.

Jan. 14,

14, 2020).

2020).

(N.D. Ill.

14.

re ALB-GOLD

Teigwaren GmbH,

14. In

In re

ALB-GOLD Teigwaren

WL

GmbH, 2020

2020 WL

122943,

(E.D.N.Y. Jan.

122943, *1

*1 (E.D.N.Y.

Jan. 10,

10, 2020).

2020).

15.

15. In

In re

re Mota,

Mota, 2020

2020 WL

WL 95493,

*1 (D.

Del. Jan.

Jan.

95493, *1

(D. Del.

08,

2020).

08, 2020).

16. In

In re

Eurasian Bank

Bank JSC,

WL 85226,

*1

16.

re Eurasian

JSC, 2020

2020 WL

85226, *1

(S.D.N.Y.

Jan. 02,

(S.D.N.Y. Jan.

02, 2020).

2020).

17. In

In re

Assistance Pursuant

Pursuant to

28

17.

re Judicial

Judicial Assistance

to 28

U.S.C.

§ 1782

1782 of

of Fagan,

Fagan, 2019

2019 WL

WL 7290964,

*1

U.S.C. §

7290964, *1

(N.D.

Dec. 30,

(N.D. Ohio

Ohio Dec.

30, 2019).

2019).

18. In

In re

Martinez Sampedro,

Sampedro, 2019

2019 WL

WL 7207361,

18.

re Martinez

7207361,

*2 (D.

Dec. 27,

*2

(D. Conn.

Conn. Dec.

27, 2019).

2019).

7020340, *1

(N.D. Cal.

Cal.

19. Xie

Xie v.

2019 WL

WL 7020340,

*1 (N.D.

19.

v. Lai,

Lai, 2019

Dec.

Dec. 20,

20, 2019).

2019).

20.

In re

Shake &

Shingle Antitrust

Antitrust

20. In

re Cedar

Cedar Shake

& Shingle

Litigation,

2019 WL

WL 6715068,

6715068, *2

*2 (W.D.

(W.D. Wash.

Wash.

Litigation, 2019

Dec. 10,

10, 2019).

Dec.

2019).

21.

In re

PGS Home

Home Co.

Ltd., 2019

WL 6311407,

6311407,

21. In

re PGS

Co. Ltd.,

2019 WL

*1 (N.D.

*1

(N.D. Cal.

Cal. Nov.

Nov. 25,

25, 2019).

2019).

3a

3a

22.

In re

Bayerische Motoren

Motoren Werke

AG, 2019

WL

22. In

re Bayerische

Werke AG,

2019 WL

5963234,

*1 (N.D.

(N.D. Cal.

Cal. Nov.

Nov. 13,

13, 2019).

2019).

5963234, *1

23.

In re

Illumina Cambridge

WL

23. In

re Illumina

Cambridge Ltd.,

Ltd., 2019

2019 WL

5811467,

*1 (N.D.

5811467, *1

(N.D. Cal.

Cal. Nov.

Nov. 07,

07, 2019).

2019).

24.

In re

Fagan, 2019

WL 5819972,

*1 (D.

24. In

re Fagan,

2019 WL

5819972, *1

(D. Colo.

Colo.

Nov.

Nov. 07,

07, 2019).

2019).

25.

Republic of

of Kazakhstan

Kazakhstan v.

Lawler, 2019

WL

25. Republic

v. Lawler,

2019 WL

28, 2019).

2019).

5558997,

*1 (D.

Ariz. Oct.

5558997, *1

(D. Ariz.

Oct. 28,

26.

In re

Request for

for Judicial

Assistance From

From the

26. In

re Request

Judicial Assistance

the

National Court

of Original

National

Court of

Original Jurisdiction

Jurisdiction

Number 68

Buenos Aires,

Aires, Argentina,

Argentina, 2019

Number

68 in

in Buenos

2019

Oct. 25,

2019).

WL 5528394,

*1 (M.D.

25, 2019).

WL

5528394, *1

(M.D. Fla.

Fla. Oct.

27.

DiGiulian v.

Health System

System

27. DiGiulian

v. Johns

Johns Hopkins

Hopkins Health

Corporation,

WL 5064672,

5064672, *1

*1 (D.

(D. Md.

Md.

Corporation, 2019

2019 WL

Oct.

2019).

Oct. 09,

09, 2019).

28.

In re

Broadcom Corporation,

WL

28. In

re Broadcom

Corporation, 2019

2019 WL

4978849,

*1 (W.D.

Wash. Oct.

4978849, *1

(W.D. Wash.

Oct. 08,

08, 2019).

2019).

29.

In re

WL 4933581,

*1 (N.D.

29. In

(N.D. Cal.

Cal.

re Yasuda,

Yasuda, 2019

2019 WL

4933581, *1

Oct.

2019).

Oct. 07,

07, 2019).

30.

In re

Medical Incorporated

Incorporated Association

Association Smile

Smile

30. In

re Medical

Create,

WL 4933582,

*1 (N.D.

Oct.

Create, 2019

2019 WL

4933582, *1

(N.D. Cal.

Cal. Oct.

07,

2019).

07, 2019).

31.

IN RE

RE EX

EX PARTE

PARTE APPLICATION

APPLICATION OF:

31. IN

OF:•

GOLDEN ROOT

LTD.,

GOLDEN

ROOT INVESTMENTS

INVESTMENTS PTE

PTE LTD.,

2019 WL

2019

WL 8011743,

*1 (C.D.

8011743, *1

(C.D. Cal.

Cal. Sep.

Sep. 06,

06,

2019).

2019).

32.

In re

Hulley Enterprises

Enterprises Ltd.,

32. In

re Hulley

Ltd., 400

400 F.

F. Supp.

Supp. 3d

3d

62

62 (S.D.N.Y.

(S.D.N.Y. Sep.

Sep. 05,

05, 2019).

2019).

4a

4a

33.

33. In

In re

re Application

Application for

for Discovery

Discovery Pursuant

Pursuant to

to 28

28

2019 WL

4110442, *1

(N.D.

U.S.C.

§ 1782,

1782, 2019

WL 4110442,

*1 (N.D.

U.S.C. §

Ohio Aug.

Ohio

Aug. 29,

29, 2019).

2019).

34.

Request from

from District

District Court

of Lugano

34. Request

Court of

Lugano ,,

Switzerland for

for Information

Information from

from Oath

Switzerland

Oath

4040552, *1

(N.D.

Holdings, Inc.,

Inc., 2019

WL 4040552,

*1 (N.D.

Holdings,

2019 WL

Cal.

Aug. 26,

2019).

Cal. Aug.

26, 2019).

35.

In re

SP. Z.O.O.

(LTD.), 412

G2A.com SP.

412 F.

F. Supp.

Supp.

35. In

re G2A.com

Z.O.O. (LTD.),

3d

145 (E.D.N.Y.

Aug. 22,

3d 145

(E.D.N.Y. Aug.

22, 2019).

2019).

36.

In re

WL 3891393,

*1 (N.D.

(N.D.

36. In

re Tomabechi,

Tomabechi, 2019

2019 WL

3891393, *1

Cal.

Aug. 19,

19, 2019).

Cal. Aug.

2019).

Yang, 2019

3891444, *1

(N.D.

37.

In re

Ming Yang,

2019 WL

WL 3891444,

*1 (N.D.

37. In

re Ming

Cal.

Aug. 19,

19, 2019).

Cal. Aug.

2019).

38.

M&S LLC

M&S LLC,

WL 3891497,

*1

38. M&S

LLC v.

v. M&S

LLC, 2019

2019 WL

3891497, *1

(N.D.

Aug. 19,

19, 2019).

2019).

(N.D. Cal.

Cal. Aug.

39.

In re

Iraq Telecom

WL 3798059,

39. In

re Iraq

Telecom Limited,

Limited, 2019

2019 WL

3798059,

*1 (S.D.N.Y.

Aug. 13,

13, 2019).

*1

(S.D.N.Y. Aug.

2019).

40.

In re

Medytox, Inc.,

Inc., 2019

2019 WL

WL 3556930,

*1 (S.D.

40. In

re Medytox,

3556930, *1

(S.D.

Ind. Aug.

Aug. 05,

Ind.

05, 2019).

2019).

41. In

re Lakhtakia,

41.

In re

Lakhtakia, 2019

WL 3406659,

*1

2019 WL

3406659, *1

(S.D.N.Y. July

29, 2019).

(S.D.N.Y.

July 29,

2019).

42.

In re

Frontier Co.,

WL 3345348,

*2 (N.D.

(N.D.

42. In

2019 WL

3345348, *2

re Frontier

Co., 2019

Cal.

July 25,

25, 2019).

2019).

Cal. July

43.

Kardas v.

Astas Holdings

Holdings A.S.,

A.S., 2019

WL

43. Kardas

v. Astas

2019 WL

3365636,

*1 (N.D.

July 25,

25, 2019).

2019).

3365636, *1

(N.D. Cal.

Cal. July

44.

Sandra Holding

Holding Ltd.

Al Saleh,

Saleh, 2019

WL

44. Sandra

Ltd. v.

v. Al

2019 WL

3072197,

*1

(D.

Mass.

July

15,

2019).

3072197, *1 (D. Mass. July 15, 2019).

5a

5a

45.

In re

Rogatory -- Request

Request for

for

45. In

re Letter

Letter Rogatory

International Judicial

Assistance, 2019

2019 WL

WL

International

Judicial Assistance,

Cal. July

2019).

3065009,

*1 (N.D.

July 12,

12, 2019).

3065009, *1

(N.D. Cal.

46.

In re

Energy and

and Resources

Resources Co.

Pte.

46. In

re Galaxy

Galaxy Energy

Co. Pte.

Ltd.,

WL 2743205,

2743205, *1

*1 (S.D.N.Y.

(S.D.N.Y. July

July 01,

01,

Ltd., 2019

2019 WL

2019).

2019).

47.

In re

MoneyOnMobile, Inc.,

Inc., 2019

WL 2515612,

47. In

re MoneyOnMobile,

2019 WL

2515612,

*1 (N.D.

June 18,

18, 2019).

*1

(N.D. Cal.

Cal. June

2019).

48.

In re

Fernando Celso

De Aquino

Aquino Chad,

48. In

re Fernando

Celso De

Chad, 2019

2019

WL 2502060,

2502060, *1

*1 (S.D.N.Y.

June 17,

17, 2019).

2019).

WL

(S.D.N.Y. June

49.

Roche Diagnostics

Diagnostics Corporation

Priority

49. Roche

Corporation v.

v. Priority

Healthcare Corporation,

WL 4687016,

*5

Healthcare

Corporation, 2019

2019 WL

4687016, *5

(N.D. Ala.

(N.D.

Ala. June

June 06,

06, 2019).

2019).

50.

In re

Aso, 2019

2019 WL

WL 2345443,

2345443, *1

*1 (S.D.N.Y.

(S.D.N.Y.

50. In

re Aso,

June 03,

2019).

June

03, 2019).

51.

In re

Request for

for Assistance

Assistance From

From Basic

Basic Court

51. In

re Request

Court

in

Subotica Serbia

Serbia in

Matter of

of Hubai,

in Subotica

in Matter

Hubai, 2019

2019

WL 2270445,

2270445, *1

*1 (N.D.

May 28,

WL

(N.D. Cal.

Cal. May

28, 2019).

2019).

52.

In re

Fagan, 2019

WL 2267063,

*1 (D.

Mass.

52. In

re Fagan,

2019 WL

2267063, *1

(D. Mass.

May 28,

2019).

May

28, 2019).

53.

In re

Fagan, 2019

WL 8011742,

*1 (C.D.

2019 WL

8011742, *1

(C.D. Cal.

Cal.

53. In

re Fagan,

May 10,

10, 2019).

2019).

May

54.

Bush v.

Inc., 2019

WL 1993792,

1993792,

54. Bush

v. Cardtronics

Cardtronics Inc.,

2019 WL

*1

(N.D. Cal.

Cal. May

*1 (N.D.

May 06,

2019).

06, 2019).

55.

In re

West Face

Face Capital

Capital Inc.,

Inc., 2019

2019 WL

WL

55. In

re West

1594994, *1

*1 (N.D.

Apr. 15,

15, 2019).

1594994,

(N.D. Cal.

Cal. Apr.

2019).

56.

In re

Hayashi Surgical

Surgical Clinic,

WL

56. In

re Hayashi

Clinic, 2019

2019 WL

1560461, *1

*1 (N.D.

Apr. 10,

10, 2019).

1560461,

(N.D. Cal.

Cal. Apr.

2019).

6a

6a

57.

Islamic Republic

Republic of

of Pakistan

Pakistan v.

Arnold &

57. Islamic

v. Arnold

&

Porter

2019 WL

Porter Kaye

Kaye Scholer

Scholer LLP,

LLP, 2019

WL 1559433,

1559433,

*1

(D.D.C. Apr.

*1 (D.D.C.

Apr. 10,

10, 2019).

2019).

58.

In re

Investment (Brazil)

(Brazil) S.A.,

S.A., 2019

WL

58. In

re CA

CA Investment

2019 WL

1531268,

1531268, *1

*1 (D.

(D. Minn.

Minn. Apr.

Apr. 09,

09, 2019).

2019).

59.

In re

WL 2255564,

2255564, *1

*1 (S.D.

(S.D.

59. In

re Jagodzinski,

Jagodzinski, 2019

2019 WL

Fla.

Apr. 08,

Fla. Apr.

08, 2019).

2019).

60.

In re

Request for

for Judicial

Assistance from

from the

60. In

re Request

Judicial Assistance

the

Municipal Court

Brno, Czech

Republic,

Municipal

Court in

in Brno,

Czech Republic,

2019

WL 1513897,

1513897, *1

*1 (D.

Minn. Apr.

Apr. 08,

(D. Minn.

08, 2019).

2019).

2019 WL

61.

In re

Request for

for Judicial

Assistance From

From

61. In

re Request

Judicial Assistance

District Court

of Frankfurt,

Frankfurt, Germany,

District

Court of

Germany, 2019

2019

(M.D. Fla.

Fla. Mar.

26, 2019).

2019).

WL 1359726,

1359726, *1

*1 (M.D.

Mar. 26,

WL

62.

In re

Polymer Solutions

Solutions International,

International, Inc.,

Inc.,

62. In

re Polymer

2019

WL 1239778,

1239778, *1

*1 (D.

Md. Mar.

Mar. 18,

18, 2019).

(D. Md.

2019).

2019 WL

63.

In re

Medical Corporation

H&S, 2019

2019 WL

WL

63. In

re Medical

Corporation H&S,

1230440, *1

*1 (N.D.

Mar. 15,

15, 2019).

2019).

1230440,

(N.D. Cal.

Cal. Mar.

64.

In re

Fuhr, 2019

WL 2245473,

*1 (S.D.

64. In

re Fuhr,

2019 WL

2245473, *1

(S.D. Fla.

Fla.

Mar. 15,

15, 2019).

Mar.

2019).

65.

Fagan v.

Morgan Chase

Bank, 2019

WL

65. Fagan

v. J.P.

J.P. Morgan

Chase Bank,

2019 WL

984281, *1

(W.D. Tex.

Feb. 28,

28, 2019).

2019).

984281,

*1 (W.D.

Tex. Feb.

66.

In re

Stadtwerke Frankfurt

Frankfurt Am

Am Main

Main Holding

66. In

re Stadtwerke

Holding

GmbH,

WL 4453913,

*1 (S.D.

GmbH, 2019

2019 WL

4453913, *1

(S.D. Ga.

Ga. Feb.

Feb.

27, 2019).

27,

2019).

***

***

7a

7a

B)

on

B) Federal

Federal district

district courts

courts ruled

ruled on

approximately fifteen

fifteen 28

§ 1782

1782

approximately

28 U.S.C.

U.S.C. §

applications between

March 6,

and March

March

applications

between March

6, 2009

2009 and

5,

5, 2010.

2010.

1.

1.

2.

2.

3.

3.

4.

4.

5.

5.

6.

6.

7.

7.

8.

8.

9.

9.

In re

WL 8767265,

*1

In

re Chevron

Chevron Corp.,

Corp., 2010

2010 WL

8767265, *1

(N.D.

Mar. 02,

(N.D. Ga.

Ga. Mar.

02, 2010).

2010).

Chubb

Ins. Co.

of Europe

Europe SE

SE v.

Chubb Ins.

Co. of

v. Zurich

Zurich

American Ins.

Ins. Co.,

WL 411323,

*1 (N.D.

Co., 2010

2010 WL

411323, *1

(N.D.

American

Ohio

Jan. 28,

Ohio Jan.

28, 2010).

2010).

In re

Application of

of FG

FG Wilson

(Engineering)

In

re Application

Wilson (Engineering)

(N.D. Ga.

Ga. Dec.

Limited,

2009 WL

WL 10671837,

10671837, *1

*1 (N.D.

Dec.

Limited, 2009

17,

17, 2009).

2009).

In

In re

Anglin, 2009

2009 WL

WL 4739481,

*1 (D.

re Anglin,

4739481, *1

(D. Neb.

Neb.

Dec. 04,

Dec.

04, 2009).

2009).

Aventis Pharma

Pharma v.

WL 3754191,

Aventis

v. Wyeth,

Wyeth, 2009

2009 WL

3754191,

*1 (S.D.N.Y.

*1

(S.D.N.Y. Nov.

Nov. 09,

09, 2009).

2009).

In re

of Request

Request From

From Dist.

Dist. Court

Stara

In

re Letter

Letter of

Court Stara

Lubovna,

WL 3711924,

*1 (M.D.

3711924, *1

(M.D. Fla.

Fla.

Lubovna, 2009

2009 WL

Nov.

Nov. 05,

05, 2009).

2009).

3642746, *1

Kulzer v.

Biomet Inc.,

Inc., 2009

2009 WL

WL 3642746,

*1

Kulzer

v. Biomet

(N.D. Ind.

(N.D.

Ind. Oct.

2009).

Oct. 29,

29, 2009).

In re

Application of

of Blue

Blue Oil

Ltd.,

In

re Application

Oil Trading

Trading Ltd.,

2009

WL 3353293,

*1 (W.D.N.C.

15,

2009 WL

3353293, *1

(W.D.N.C. Oct.

Oct. 15,

2009).

2009).

In re

Application of

of OOO

Promnefstroy for

for an

an

In

re Application

000 Promnefstroy

Order

Discovery for

for Use

a

Order to

to Conduct

Conduct Discovery

Use in

in a

Foreign Proceeding,

Proceeding, 2009

2009 WL

WL 3335608,

*1

Foreign

3335608, *1

(S.D.N.Y. Oct.

(S.D.N.Y.

15, 2009).

Oct. 15,

2009).

8a

8a

10. In

In re

Blue Oil

2009 WL

WL 3247854,

10.

re Blue

Oil Trading

Trading Ltd.,

Ltd., 2009

3247854,

*1

*1 (W.D.N.C.

(W.D.N.C. Oct.

Oct. 05,

05, 2009).

2009).

11. In

In re

Application of

of Temporary

Services Ins.

Ins.

11.

re Application

Temporary Services

Ltd.,

WL 2843258,

2843258, *1

*1 (W.D.N.Y.

(W.D.N.Y. Aug.

Aug. 28,

28,

Ltd., 2009

2009 WL

2009).

2009).

12. Ukrnafta

Petroleum Corp.,

12.

Ukrnafta v.

v. Carpatsky

Carpatsky Petroleum

Corp., 2009

2009

WL 2877156,

2877156, *1

*1 (D.

Aug. 27,

WL

(D. Conn.

Conn. Aug.

27, 2009).

2009).

13. In

In re

DB Mexico,

Mexico, S.A.

S.A. de

13.

re Operadora

Operadora DB

de C.V.,

C.V., 2009

2009

WL 2423138,

2423138, *1

*1 (M.D.

Aug. 04,

WL

(M.D. Fla

Fla Aug.

04, 2009).

2009).

14. In

In re

Application of

of Strand

Strand Investments

Investments Ltd.,

14.

re Application

Ltd.,

(S.D. Fla.

Fla. July

24, 2009).

2009

WL 2225536,

*1 (S.D.

July 24,

2009).

2009 WL

2225536, *1

15. In

In re

Arbitration between

Norfolk Southern

Southern

15.

re Arbitration

between Norfolk

Corp.,

Norfolk

Southern

Ry.

Co.,

and

Corp., Norfolk Southern Ry. Co., and General

General

Sec. Ins.

Ins. Co.

and Ace

Ace Bermuda

Bermuda Ltd.,

Ltd., 626

626 F.

Sec.

Co. and

F.

Supp.

2d 882

(N.D. Ill.

Ill. June

June 15,

15, 2009).

Supp. 2d

882 (N.D.

2009).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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