Amicus Curiae Brief — Ford Motor Company, Petitioner v. Montana Eighth Judicial District Court, et al.
Supreme Court briefMar 6, 2020
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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.