Amicus Curiae Brief — Servotronics, Inc., Petitioner v. Rolls-Royce PLC, et al.

No. 20-794

IN THE

Supreme Court of the United States

__________

SERVOTRONICS, INC.,

Petitioner,

v.

ROLLS-ROYCE PLC, ET AL.,

Respondents.

__________

On Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

__________

BRIEF OF

INSTITUTE OF INTERNATIONAL BANKERS

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

__________

STEPHANIE WEBSTER

INSTITUTE OF

INTERNATIONAL BANKERS

299 Park Avenue

17th Floor

New York, NY 10171

(646) 213-1149

June 28, 2021

DEREK T. HO

Counsel of Record

ELIANA MARGO PFEFFER*

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(dho@kellogghansen.com)

* Admitted only in New York;

supervised by members of the

firm

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE ............................ 1

INTRODUCTION AND SUMMARY ......................... 2

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

I. Expanding § 1782 To Foreign Arbitrations

Would Exacerbate The Heavy Burdens

Already Faced By Discovery Targets .............. 4

A. Section 1782 Applications Impose

Significant Burdens on Financial

Institution Respondents ............................. 4

B. Expanding § 1782 to Foreign Arbitrations Would Greatly Exacerbate the

Burdens on Respondents ............................ 7

II. Interpreting “Tribunal” To Include Foreign

Arbitration Would Exacerbate The Improper

Extraterritorial Application Of § 1782 .......... 10

CONCLUSION.......................................................... 14

ii

TABLE OF AUTHORITIES

Page

CASES

Application of Fairlight Art Ventures LLP For

an Order to Take Discovery Pursuant to 28

U.S.C. § 1782(a), In re, No. 1:18-mc-00464GHW, ECF No. 7 (S.D.N.Y. Oct. 11, 2018) ........... 5

Application of Gorsoan Ltd. & Gazprombank

OJSC for an Order Pursuant to 28 U.S.C.

1782 to Conduct Discovery for Use in a

Foreign Proceeding, In re, No. 13 Misc. 397

(PGG), 2014 WL 7232262 (S.D.N.Y. Dec.

10, 2014), aff ’d sub nom. Gorsoan Ltd. v.

Bullock, 652 F. App’x 7 (2d Cir. 2016) .............. 6, 9

Application of Hornbeam Corp., In re, No. 14

Misc. 424, 2014 WL 8775453 (S.D.N.Y. Dec.

24, 2014) ................................................................. 4

Application of Masters for an Order Pursuant

to 28 U.S.C. § 1782 to Conduct Discovery

for Use in a Foreign Proceeding, In re,

315 F. Supp. 3d 269 (D.D.C. 2018) ....................... 5

Consorcio Ecuatoriano de Telecomunicaciones

S.A. v. JAS Forwarding (USA), Inc., In re,

747 F.3d 1262 (11th Cir. 2014) ............................. 7

del Valle Ruiz, In re, 939 F.3d 520 (2d Cir.

2019)............................................................4, 11, 12

F. Hoffmann-La Roche Ltd. v. Empagran S.A.,

542 U.S. 155 (2004) ............................................. 14

Godfrey, In re, 526 F. Supp. 2d 417 (S.D.N.Y.

2007)..................................................................... 12

Gushlak v. Gushlak, 486 F. App’x 215 (2d Cir.

2012)....................................................................... 5

iii

Heraeus Kulzer, GmbH v. Biomet, Inc., 633 F.3d

591 (7th Cir. 2011) .............................................. 5-6

Illumina Cambridge Ltd. v. Complete Genomics,

Inc., No. 19-mc-80215-WHO (TSH), 2020

WL 820327 (N.D. Cal. Feb. 19, 2020) ................. 11

Intel Corp. v. Advanced Micro Devices, Inc.,

542 U.S. 241 (2004) ..............................2, 3, 6, 9, 13

JSC MCC EuroChem v. Chauhan, No. 18-5890,

2018 WL 9650037 (6th Cir. Sept. 14, 2018) ......... 7

Kreke Immobilien KG, In re, No. 13 Misc. 110

(NRB), 2013 WL 5966916 (S.D.N.Y. Nov. 8,

2013)....................................................................... 4

MT BALTIC SOUL ProduktentankschiffAhrtsgesellschaft mgH & Co. KG, In re,

No. 15 Misc. 319 (LTS), 2015 WL 5824505

(S.D.N.Y. Oct. 6, 2015) .......................................... 4

Nestlé USA, Inc. v. Doe, No. 19-416 (U.S. June

17, 2021) ............................................................... 10

Pinchuk v. Chemstar Prods. LLC, No. 13-mc306-RGA, 2014 WL 2990416 (D. Del. June

26, 2014) .......................................................... 11-12

Republic of Kazakhstan for an Order Directing

Discovery from Clyde & Co. LLP Pursuant

to 28 U.S.C. § 1782, In re, 110 F. Supp. 3d

512 (S.D.N.Y. 2015) ............................................... 6

RJR Nabisco, Inc. v. European Cmty., 136 S.

Ct. 2090 (2016)................................................10, 11

Schlich, In re, 893 F.3d 40 (1st Cir. 2018) ................. 5

Sergeeva v Tripleton Int’l Ltd., 834 F.3d 1194

(11th Cir. 2016) ...............................................11, 12

Whitman v. American Trucking Ass’ns, 531

U.S. 457 (2001) .................................................... 12

iv

STATUTES AND RULES

18 U.S.C. § 1596(a) ................................................... 11

18 U.S.C. § 1621 ........................................................ 11

28 U.S.C. § 1291 .......................................................... 7

28 U.S.C. § 1782 ................................................. passim

28 U.S.C. § 1782(a) ..................................................... 2

Fed. R. Civ. P.:

Rule 26 ................................................................... 2

Rule 45 ........................................................2, 10, 12

Sup. Ct. R.:

Rule 37.3(a) ............................................................ 1

Rule 37.6 ................................................................ 1

LEGISLATIVE MATERIALS

S. Rep. No. 88-1580 (1964), reprinted in 1964

U.S.C.C.A.N. 3782 ............................................... 13

OTHER MATERIALS

Emily Burge, Patents vs. Privacy: Balancing

Cross-Border Discovery with the General

Data Protection Regulation in Patent Litigation, 48 AIPLA Q.J. 719 (2020) ....................... 14

Int’l Centre for Settlement of Inv. Disputes,

“2020 Year in Review” (Dec. 21, 2020),

https://icsid.worldbank.org/news-and-events/

news-releases/2020-year-review/ .......................... 7

v

Int’l Chamber of Com., “ICC announces record

2020 caseloads in Arbitration and ADR”

(Jan. 12, 2021), https://iccwbo.org/mediawall/news-speeches/icc-announces-record2020-caseloads-in-arbitration-and-adr/ ................ 8

London Ct. of Int’l Arb., “Record number of

LCIA Cases in 2020” (Jan. 20, 2021),

https://www.lcia.org/News/record-numberof-lcia-cases-in-2020.aspx ...................................... 8

Amy J. Schmitz, Untangling the Privacy

Paradox in Arbitration, 54 U. Kan. L. Rev.

1211 (2006) ............................................................ 8

Hans Smit, American Assistance to Litigation

in Foreign and International Tribunals:

Section 1782 of Title 28 of the U.S.C. Revisited, 25 Syracuse J. Int’l L. & Com. 1 (1998) ...... 13

Yanbai Andrea Wang, Exporting American

Discovery, 87 U. Chi. L. Rev. 2089 (2020) ........ 3, 5

INTEREST OF AMICUS CURIAE 1

Amicus Institute of International Bankers (“IIB”) is

the only national association devoted exclusively to

representing and advancing the interests of banking

organizations headquartered outside the United

States that operate in the United States. The IIB’s

membership consists of internationally headquartered

banking and financial institutions from around the

world. The IIB regularly appears before federal

courts as amicus curiae in cases that raise significant

legal issues related to banking.

The IIB’s members are frequent targets of discovery requests under 28 U.S.C. § 1782. Indeed, nearly

one-quarter of all § 1782 requests are filed in the

Southern District of New York (where both U.S. and

international financial institutions are often subject

to jurisdiction) with another 13.9% in the Southern

and Middle Districts of Florida (where Latin

American financial institutions are often subject to

jurisdiction).

Because IIB members frequently find themselves

the subject of § 1782 discovery requests, the IIB

respectfully submits this amicus brief to provide

the Court with insight into the burdens imposed

on respondents to § 1782 applications where the

requested discovery is intended for use in foreign

arbitration. Those burdens are exacerbated by the

lower courts’ failure to limit the extraterritorial appli1 Pursuant to Supreme Court Rule 37.6, counsel for amicus

represent that they authored this brief in its entirety and that

none of the parties or their counsel, nor any other person or

entity other than amicus or its counsel, made a monetary

contribution intended to fund the preparation or submission of

this brief. Pursuant to Rule 37.3(a), counsel for amicus also

represent that all parties have consented to the filing of this

brief.

2

cation of § 1782, resulting in U.S. courts becoming

a magnet for foreign litigants seeking documents

located in the possession of foreign companies and

located abroad.

INTRODUCTION AND SUMMARY

In its decision in Intel, this Court alluded to the

importance of “further experience with § 1782(a)

applications in the lower courts.” Intel Corp. v.

Advanced Micro Devices, Inc., 542 U.S. 241, 265

(2004). The experience of the ensuing 15 years

indicates the need to narrow § 1782, not expand

it. Section 1782 applications impose tremendous

burdens on companies that do business in the United

States, pursuant to a procedural regime that unfairly

favors applicants over discovery respondents.

As a matter of practice, § 1782 applications are

filed ex parte; the respondent has no notice of it.

The district court rules on the application purely on

the basis of the self-serving arguments made in the

application. Predictably, the applicant nearly always

prevails. Only then does the respondent have a

chance to challenge the application, upon service of

the subpoena authorized by the grant of the

application. But by that point, the respondent faces

the uphill battle of proving that the application was

improperly granted or that the subpoena violates

Federal Rule of Civil Procedure 26 or 45.

Making § 1782 available to parties to foreign

arbitration would only exacerbate these problems.

The number of foreign arbitrations is growing

rapidly, exposing respondents to an increasing number

of § 1782 applications. Worse, foreign arbitrations

(like domestic ones) are largely confidential.

Respondents therefore generally lack the ability to

obtain the arbitration record to evaluate the

3

arguments made in the application or the propriety

of the subpoena’s scope. The respondent bears the

burden of proof, yet it has no access to the evidence.

In addition, courts have been unwilling to reject

the extraterritorial application of § 1782, even

though it is unsupported by either the text or the

legislative history of § 1782. As a result, respondents

such as IIB’s members are routinely faced with the

specter of having to produce documents worldwide

in response to § 1782-authorized subpoenas. Again,

allowing parties to foreign arbitrations to use § 1782

as a means to obtain worldwide discovery is

inconsistent with the statute’s text and structure and

would exacerbate the already severe burdens faced

by financial institutions and other multinational

companies with a U.S. presence.

ARGUMENT

I. Expanding § 1782 To Foreign Arbitrations

Would Exacerbate The Heavy Burdens

Already Faced By Discovery Targets

A. Section 1782 Applications Impose Significant Burdens on Financial Institution

Respondents

Section 1782 imposes significant burdens on

financial institutions like IIB’s members. Between

2005 (right after this Court’s decision in Intel ) and

2017, the annual number of § 1782 applications

quadrupled. See Yanbai Andrea Wang, Exporting

American Discovery, 87 U. Chi. L. Rev. 2089, 2109

(2020) (hereinafter, “Wang”). IIB members routinely

are required to retain outside litigation counsel –

and often foreign-law experts – to respond to § 1782

applications. IIB estimates that its members collectively spend millions of dollars annually responding

to such applications.

4

Applicants in § 1782 proceedings frequently ask

banks to produce an overwhelming number of

documents. For example, one applicant demanded all

documents ever created relating to the billion-dollar

acquisition of another bank, including documents

about bank operations predating the purchase. See

In re Kreke Immobilien KG, No. 13 Misc. 110 (NRB),

2013 WL 5966916, at *7 (S.D.N.Y. Nov. 8, 2013),

abrogated by In re del Valle Ruiz, 939 F.3d 520 (2d

Cir. 2019). Others have asked a dozen banks for “the

full records” of a whole host of firms and individuals,

as well as “[c]opies of any orders, instructions or wire

transfers received from a payor/transferor bank to a

payee/transferee bank for the benefit or credit of, or

with any reference to,” those entities. In re Application of Hornbeam Corp., No. 14 Misc. 424, 2014 WL

8775453, at *2 (S.D.N.Y. Dec. 24, 2014). Yet another

sought every financial transaction seven companies

had engaged in with 11 different banks, along

with considerable additional financial information.

See In re MT BALTIC SOUL ProduktentankschiffAhrtsgesellschaft mgH & Co. KG, No. 15 Misc. 319

(LTS), 2015 WL 5824505, at *3 (S.D.N.Y. Oct. 6,

2015).

Banks have a legitimate interest in ensuring that

§ 1782 discovery is relevant and proportionate under

the Federal Rules. But their ability to resist overly

broad and unduly burdensome discovery requests

under § 1782 is curtailed significantly by a procedural framework that structurally disadvantages

respondents and makes it costly and difficult to resist

even clearly inappropriate discovery.

5

Section 1782 applications are generally handled by

a district court ex parte.2 The district judge therefore

determines whether to authorize discovery based on

the applicant’s one-sided recitation of the facts and

without the benefit of any adversarial process. While

some district courts have adopted the salutary

practice of routinely requiring that the applicant

serve the application on the target of the discovery,

see, e.g., Order, In re Application of Fairlight Art

Ventures LLP For an Order to Take Discovery

Pursuant to 28 U.S.C. § 1782(a), No. 1:18-mc-00464GHW, ECF No. 7 (S.D.N.Y. Oct. 11, 2018), that

practice has not been widely adopted. Little surprise,

then, that the initial application is granted in an

overwhelming percentage of cases. See Wang, 87 U.

Chi. L. Rev. at 2123 (finding that ex parte § 1782

applications are granted 97.3% of the time).

In these cases, a respondent learns of the

application for the very first time when a subpoena is

served. At that point, the respondent can challenge

the discovery by moving to quash the subpoena or

to vacate the Court’s grant of the application.

Whichever procedure the respondent uses, however,

it bears the burden as the movant to show that the

discovery is unwarranted.

See Heraeus Kulzer,

GmbH v. Biomet, Inc., 633 F.3d 591, 597 (7th Cir.

2 See, e.g., In re Schlich, 893 F.3d 40, 51 (1st Cir. 2018)

(noting that “courts may adjudicate ex parte petitions under

§ 1782”); Gushlak v. Gushlak, 486 F. App’x 215, 217 (2d Cir.

2012) (stating that “it is neither uncommon nor improper for

district courts to grant applications made pursuant to § 1782

ex parte”); In re Application of Masters for an Order Pursuant to

28 U.S.C. § 1782 to Conduct Discovery for Use in a Foreign

Proceeding, 315 F. Supp. 3d 269, 272-73 (D.D.C. 2018) (holding

that “district courts are generally authorized to review a § 1782

application on an ex parte basis”).

6

2011) (“Once a section 1782 applicant demonstrates

a need for extensive discovery for aid in a foreign

lawsuit, the burden shifts to the opposing litigant

to demonstrate, by more than angry rhetoric, that

allowing the discovery sought (or a truncated version

of it) would disserve the statutory objectives.”); In re

Application of Gorsoan Ltd. & Gazprombank OJSC

for an Order Pursuant to 28 U.S.C. 1782 to Conduct

Discovery for Use in a Foreign Proceeding, No. 13

Misc. 397 (PGG), 2014 WL 7232262, at *5 (S.D.N.Y.

Dec. 10, 2014) (requiring that a party specifically

identify the manner and extent of the burden and the

negative consequences of compliance before quashing

a § 1782 subpoena pursuant to the Federal Rules),

aff ’d sub nom. Gorsoan Ltd. v. Bullock, 652 F. App’x

7 (2d Cir. 2016). Moreover, because the district court

has already granted the ex parte application, the

respondent must convince the court to reverse itself

despite never having had an opportunity for its

views to be taken into consideration on the initial

application.

For example, under Intel, a significant consideration in whether to grant § 1782 discovery is the

foreign tribunal’s receptivity to the evidence sought.

Of course, the applicant’s ex parte application will

rarely highlight possible unwillingness on the part of

the foreign tribunal to consider discovery obtained

abroad. The respondent is thus forced to disprove

the foreign tribunal’s receptivity to the evidence –

again, in a reconsideration posture where it must

prove that the district court initially got it wrong.

See, e.g., In re Republic of Kazakhstan for an Order

Directing Discovery from Clyde & Co. LLP Pursuant

to 28 U.S.C. § 1782, 110 F. Supp. 3d 512, 514-15,

516-17 (S.D.N.Y. 2015). As explained further below,

that procedure – which is unfair in any case – raises

7

particularly serious due process problems when

discovery is sought in aid of a foreign arbitration.

The procedures for appellate review also

disadvantage discovery respondents. The denial of a

motion to vacate a § 1782 subpoena is immediately

appealable under 28 U.S.C. § 1291, see, e.g., In re

Consorcio Ecuatoriano de Telecomunicaciones S.A. v.

JAS Forwarding (USA), Inc., 747 F.3d 1262, 1274 n.6

(11th Cir. 2014), but that right to appeal is largely

theoretical unless a respondent can satisfy the high

standard for a stay pending appeal, see, e.g., JSC

MCC EuroChem v. Chauhan, No. 18-5890, 2018 WL

9650037, at *1 (6th Cir. Sept. 14, 2018). Without

such a stay, the respondent must comply with the

subpoena – upon risk of contempt – before the appeal

can be heard.

B. Expanding § 1782 to Foreign Arbitrations

Would Greatly Exacerbate the Burdens on

Respondents

Expanding § 1782 to include discovery in aid of

foreign arbitration – rather than court proceedings –

would greatly increase the already significant

burdens on IIB members and other financial

institutions with operations in the United States.

For starters, the number of foreign arbitration

proceedings has increased dramatically in recent

years. For example, the International Centre for

Settlement of Investment Disputes (“ICSID”)

announced that it saw a record number of arbitrations filed in 2020.3 The International Chamber of

Commerce (“ICC”) also posted its highest number of

3 See ICSID, “2020 Year in Review” (Dec. 21, 2020),

https://icsid.worldbank.org/news-and-events/news-releases/2020year-review/.

8

cases since 2016.4 The London Court of International Arbitration (“LCIA”) similarly announced that

it had seen an all-time high in referrals.5 Petitioner’s

position would thus dramatically expand the number

of § 1782 applications in federal courts.

Foreign arbitrations, moreover, pose particularly

significant challenges for respondents faced with

improper discovery requests. Foreign arbitration

proceedings are generally private; there is no

electronic docket where § 1782 respondents can

review the nature of the proceeding, access relevant

filings, and determine the scope of the issues

being adjudicated. See generally Amy J. Schmitz,

Untangling the Privacy Paradox in Arbitration, 54

U. Kan. L. Rev. 1211, 1214-22 (2006) (describing

arbitration as “generally less transparent than court

proceedings”). Thus, a respondent generally has no

means to obtain basic information needed to evaluate

whether the discovery sought is appropriate.

To return to the example of receptivity discussed

above, the respondent often has no way to obtain

foreign arbitral discovery orders or other rulings that

might demonstrate the limits on the arbitrators’

willingness to consider evidence obtained abroad.

More generally, in the context of a confidential

foreign arbitration, it is often difficult to discern

whether the applicant is an “interested person” for

purposes of § 1782, the type of arbitral proceeding at

4

See ICC, “ICC announces record 2020 caseloads in

Arbitration and ADR” (Jan. 12, 2021), https://iccwbo.org/mediawall/news-speeches/icc-announces-record-2020-caseloads-inarbitration-and-adr/.

5 See LCIA, “Record number of LCIA Cases in 2020” (Jan. 20,

2021), https://www.lcia.org/News/record-number-of-lcia-casesin-2020.aspx.

9

issue (e.g., an international commercial arbitrational

from international investment arbitration), the

agreements, rules, laws, or treaties governing the

arbitration’s proceedings, the procedural posture of

the arbitration (e.g., how advanced the arbitration

is), the scope of the issues in the underlying

proceeding, what other discovery has already been

obtained, any arbitral rulings that might bear on the

appropriateness of the requested discovery, whether

the documents or testimony sought might otherwise

be within the arbitral body’s reach, or whether the

request is unduly intrusive or burdensome given the

scope and subject of the dispute. All of these issues

bear on the factors that district courts consider under

Intel in deciding whether to grant the § 1782 discovery in the first instance. But in moving to quash or

vacate the subpoena, a respondent must rely almost

entirely on the applicant’s proffer to contest whether

the § 1782 factors were met.

Even the straightforward questions of relevance

and burden are extremely difficult for respondents

to evaluate in the context of foreign arbitration. In

evaluating whether a subpoena is unduly burdensome, courts consider “such factors as relevance,

the need of the party for the documents, the breadth

of the document, the time period covered by it, the

particularity with which the documents are described

and the burden imposed.” In re Application of

Gorsoan, 2014 WL 7232262, at *10 (citation omitted).

The respondents must adduce evidence on these

issues; “mere[ ] assert[ions]” of undue burden are

insufficient. Id. at *5 (citation omitted). Without the

ability to independently evaluate the scope of the

underlying proceeding, however, non-party banks are

deprived of the tools to resist overbroad discovery.

10

Contrast this with a Rule 45 subpoena arising from

a judicial proceeding, in which the discovery target

can review filings and prior decisions in the case

to evaluate whether the requested discovery is

reasonable or unduly burdensome, and use the

record to support its argument in any challenge to

the subpoena. In short, expanding § 1782 to foreign

arbitration will exacerbate a process that already

severely curtails respondents’ practical ability to

oppose improper discovery requests.

II. Interpreting “Tribunal” To Include Foreign

Arbitration Would Exacerbate The Improper

Extraterritorial Application Of § 1782

Expanding § 1782 to foreign arbitrations threatens

to expand the questionable application of the statute

to documents located outside of the United States.

IIB members face this problem routinely, because

they have operations both in the United States

and abroad. Some IIB members with small (but

important) operations in the United States have

affiliates in as many as 59 other countries. IIB’s

members routinely receive subpoenas that purport to

require them to produce not only documents in the

possession of their U.S. branch or entity, but also

documents in the possession of their foreign affiliates

located around the world.

As this Court has frequently reaffirmed, there is a

strong presumption against extraterritorial application of federal statutes; they are presumed to apply

“only domestically” unless “ ‘the statute gives a clear,

affirmative indication’ that rebuts this presumption.”

Nestlé USA, Inc. v. Doe, No. 19-416, slip op. 3

(U.S. June 17, 2021) (quoting RJR Nabisco, Inc. v.

European Cmty., 136 S. Ct. 2090, 2101 (2016)).

Indeed, this presumption “is at its apex” when there

11

is risk of U.S. law conflicting with foreign law. RJR

Nabisco, 136 S. Ct. at 2107. That is because this

presumption, among other things, “serves to avoid

the international discord that can result when U.S.

law is applied to conduct in foreign countries.” Id. at

2100.

Nothing in the text of § 1782 makes clear that

Congress “affirmatively and unmistakably instructed”

that it should apply extraterritorially. Id. Congress

knows how to speak clearly if it wants to. See, e.g.,

18 U.S.C. § 1596(a) (stating that “the courts of the

United States have extra-territorial jurisdiction over

any offense” related to certain human-trafficking

practices); id. § 1621 (applying U.S. perjury law

regardless of whether “the statement or subscription

is made within or without the United States”). It has

not done so in § 1782.

Even so, two circuits have held that § 1782 may

be used to compel the production of evidence located

abroad. See In re del Valle Ruiz, 939 F.3d 520, 524

(2d Cir. 2019) (holding that “there is no per se bar to

the extraterritorial application of § 1782”); Sergeeva

v Tripleton Int’l Ltd., 834 F.3d 1194, 1200 (11th

Cir. 2016) (holding that § 1782 reaches “responsive

documents and information located outside the

United States” so long as it is within the “possession,

custody, or control of ” the discovery target). And

some district courts have followed their lead. See,

e.g., Illumina Cambridge Ltd. v. Complete Genomics,

Inc., No. 19-mc-80215-WHO (TSH), 2020 WL 820327,

at *10 (N.D. Cal. Feb. 19, 2020) (deciding that, so

long as respondents controlled the documents, “the

Court declines to limit production to documents

physically located within the United States”); but see

Pinchuk v. Chemstar Prods. LLC, No. 13-mc-306-RGA,

12

2014 WL 2990416, at *4 (D. Del. June 26, 2014)

(quashing a discovery request for documents located

abroad).

Because § 1782 provides that “the testimony or

statement shall be taken, and the document or other

thing produced, in accordance with the Federal Rules

of Civil Procedure,” these circuits have determined

that Congress effectively incorporated the Federal

Rules of Civil Procedure whole cloth – including its

lack of geographic limitation. See Sergeeva, 834 F.3d

at 1200 (inferring from Rule 45’s requirement that

parties produce documents within their possession,

custody, or control “that the location of responsive

documents and electronically stored information . . .

does not establish a per se bar to discovery under

§ 1782”); In re del Valle Ruiz, 939 F.3d at 533 (same).

Congress does not “hide elephants in mouseholes.”

Whitman v. American Trucking Ass’ns, 531 U.S. 457,

468 (2001). The statute’s passing reference to the

Federal Rules is clearly insufficient to overcome the

presumption against extraterritoriality.

Even if the reference to the Federal Rules somehow

rendered the statute ambiguous, § 1782’s legislative

history only confirms this reading. Professor Hans

Smit, the principal author of § 1782, observed “that

the drafters of § 1782 did not intend that the statute

be used to compel documents located in a foreign

country.” In re Godfrey, 526 F. Supp. 2d 417, 423

(S.D.N.Y. 2007), abrogated on other grounds by In re

del Valle Ruiz, 939 F.3d 520 (2d Cir. 2019). The

drafters instead intended to create “a harmonious

scheme”: “Evidence in Spain is obtained through

proceedings in Spain, evidence in Great Britain is

obtained through proceedings in Great Britain, and

evidence in the United States is obtained through

13

proceedings in the United States.” Hans Smit,

American Assistance to Litigation in Foreign and

International Tribunals: Section 1782 of Title 28

of the U.S.C. Revisited, 25 Syracuse J. Int’l L. &

Com. 1, 11 (1998). The point was to provide “judicial

assistance and cooperation,” Intel, 542 U.S. at 248

(citation omitted), not to turn federal courts into

“clearing houses for requests for information from

courts and litigants all over the world in search

of evidence to be obtained all over the world,” Smit,

25 Syracuse J. Int’l L. & Com. at 11. Further, the

Senate Report provides that “[t]he proposed revision

of section 1782 . . . clarifies and liberalizes existing

U.S. procedures for assisting foreign and international tribunals and litigants in obtaining oral

and documentary evidence in the United States.”

S. Rep. No. 88-1580, at 7 (1964), reprinted in 1964

U.S.C.C.A.N. 3782, 3788 (emphasis added).

It

further states that “[t]he purpose of [§ 1782] is to

improve U.S. judicial procedures for . . . [o]btaining

evidence in the United States in connection with proceedings before foreign and international tribunals.”

Id. at 1, reprinted in 1964 U.S.C.C.A.N. 3782.

Unless and until this Court corrects the lower

courts’ failure to adhere to the presumption against

extraterritoriality, expanding § 1782 to foreign

arbitrations will only exacerbate the burdens faced

by multinational banks such as IIB’s members.

Section 1782 applicants will continue to use § 1782

discovery aimed at the U.S. branches of multinational

banks to demand production of all documents

wherever they are located. Section 1782 will turn

federal courts into clearing houses for worldwide

discovery into multinational banks for proceedings

pending across the globe.

14

The burden of producing documents located in

foreign countries is also particularly severe. Some

IIB members with small (but important) outposts

in the United States have affiliates in as many as

59 other jurisdictions. Searching for and reviewing

documents in multiple locations – and potentially in

multiple languages – consumes substantial time and

resources. Moreover, IIB members often face strict

privacy laws in other jurisdictions. Compliance with

those laws is complex and expensive at the very

least; not infrequently, those laws conflict with

the broad discovery authorized by the Federal

Rules. See, e.g., Emily Burge, Patents vs. Privacy:

Balancing Cross-Border Discovery with the General

Data Protection Regulation in Patent Litigation,

48 AIPLA Q.J. 719, 724-27 (2020) (contrasting the

Federal Rules with the European Union’s General

Data Protection Regulation). Petitioner’s interpretation of the statute would not only increase the

burden faced by respondents, but also create needless conflict between U.S. and foreign law. See F.

Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S.

155, 164-65 (2004) (noting that the Court ordinarily

construes statutes in a manner that “helps the

potentially conflicting laws of different nations work

together in harmony—a harmony particularly needed

in today’s highly interdependent commercial world”).

CONCLUSION

The judgment of the court of appeals should be

affirmed.

15

Respectfully submitted,

STEPHANIE WEBSTER

INSTITUTE OF

INTERNATIONAL BANKERS

299 Park Avenue

17th Floor

New York, NY 10171

(646) 213-1149

June 28, 2021

DEREK T. HO

Counsel of Record

ELIANA MARGO PFEFFER*

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P.L.L.C.

1615 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 326-7900

(dho@kellogghansen.com)

* Admitted only in New York;

supervised by members of the

firm