Opposition Brief — United Technologies International, Inc. v. Malev Hungarian Airlines

EIEED

Z | JUL 31 1992

No. 92-00018

In The = =

Sugrene Court of the United States

ge

October Term, 1992

UNITED TECHNOLOGIES INTERNATIONAL, INC.,

P & W COMMERCIAL ENGINE BUSINESS,

Petitioner,

vs.

MALEV HUNGARIAN AIRLINES,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

RESPONDENT'S BRIEF IN OPPOSITION

ROBERT C. BATA

Counsel of Record

ELIZABETH A. MULLINS

KENNETH PASQUALE

Stroock & Stroock &Lavan

7 Hanover Square

New York, New York 10004

(212) 806-5400

BARRY H. GARFINKEL

MARCO E. SCHNABL

Skadden Arps Slate Meagher

& Flom

919 Third Avenue

New York, New York 10022

(212) 735-3000

Attorneys for Respondent

QUESTION PRESENTED

Did the Court of Appeals correctly hold that the district court

abused its discretion in denying Malev’s application pursuant to 28

U.S.C. § 1782 (1988), which authorizes “any interested person” to

seek assistance of a district court in obtaining discovery of a person

residing or found in the United States for use in proceedings before

a foreign tribunal, on the ground that the district court should not

have relied on factors neither mentioned in the statute nor implied

by its legislative history; namely, that Malev should have first

presented its request for discovery to the foreign court, and that

granting the application would entail unspecified “reciprocal

discovery problems?”

ul

TABLE OF CONTENTS

Page

Question Presented... 0.65 6<is0u eee eee ee eee ee i

Table of Conmtemts.. 0s isvu eae teen eee eee il

Table of Authoring’. ...cckavceay ee eee eee ee iv

Seatute Involved ....6..0s005 056s bee 2

Counterstatement Of (86 COORD o.ciksccacsadaewaceeeanes 3

A. Malev’s § 17GZ ROE i650 25cee see eeess 3

B. The District Court's GROOs cc's ics ceeeeiccss 4

C. The Court of Appeals’ Opinion ..........ss000: 5

D. Other Praceemiiei..s.<sscnecuas be cen eeeeeeees 8

Summary Of ASQUNG «....<o00<5s024 55 6abaeeeeretenen 9

Reasons for Denying the Writ ......ccecccsevevsssseces 1]

I. The Writ Should Be Denied Because This Case Does

Not Present Significant Legal Issues Or Other Special

And Important Reasons For Granting The Writ.. 11

A. Review By This Court Would Be Premature. 11

B. ‘‘Need’’ Is Not An Appropriate Factor Under

§ IFES on cckcasccunestese eee 13

lil

Contents

Page

C. Reciprocity Is Not Required By § 1782..... 15

D. The Court Of Appeals Decision Will Not Burden

The Courts Or Penalize Litigants .......... 17

Il. The Writ Should Be Denied Because This Case Does

Not Conflict With Any Other Decision Of A United

menees Court Of Appegis..... 2... cose cca ees 19

ah a ey aR a 21

iv

Contents

Page

TABLE OF AUTHORITIES

Cases Cited:

American Constr. Co. v. Jacksonville, T& K.W.R. Co., 148

Co ee CDs x's ba ee eee es Aa oe kee Se ea 12

American Tobacco Co. v. Patterson, 456 U.S. 63 (1982)

LES SO Ee CE OP A Te ee Ea ne nen eee 20

Brotherhood of Locomotive Firemen & Enginemen v. Bangor

& A. Co, Fe Cis Bee COED he wenn ke lcbacdan 12

Burton v. Bush, 614 F.2d 389 (4th Cir. 1980)...... Siete 12

Caminetti v. United States, 242 U.S. 470 (1917) ........ 20

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S.

ee ESS Meas wea bw 6 did 644d MAK OR 12

In re Asta Medica, S.A. No. 91328-P-H, 1992 WL 119080

i Se ee OEE cas pane cekhae uae s Kee nek 14

In re Letter of Request from Crown Prosecution Serv. of

United Kingdom, 870 F.2d 686 (D.C. Cir. 1989) ....

LEARUASH WEE RENS RT La CO eT any hae ee 13, 17

In re Letter Rogatory from Justice Court, Dist. of Montreal

Canada, 523 F.2d 562 (6th Cir. 1975) ............. 17

In re Letters Rogatory from Tokyo Dist., Tokyo, Japan, 539

oe Be FB eR PR reece rere ee 17

-

Contents

Page

In re Request for Assistance from Ministry of Legal Affairs

of Trinidad and Tobago, 117 F.R.D. 177 (S.D. Fla.

1987), 848 F.2d 1151 (11th Cir. 1988), cert. denied, 488

CS. OE Gates sk vee cece eee 13, 14, 17

In re Request for Judicial Assistance from the Seoul Dist.,

Criminal Court, Seoul, Korea, 555 F.2d 720 (9th Cir.

SPEED ocx cet ne'e Wonks teeter et eee 14

John Deere, Ltd. v. Sperry Corp., 754 F.2d 132 (3d Cir. 1985)

ce Seana ce 4suey ees eee ee 9, 13, 14, 16, 19, 20

Lo Ka Chun v. Lo To, 858 F.2d 1564 (11th Cir. 1988)

ee ee ys A yee ee 9, 19, 20

Mississippi Power Co. v. Peabody Coal Co., 69 F.R.D. 558

es OS 2, | Rn © <teR Aas Reni go 12

Société Nationale Industrielle Aerospatiale v. United States

District Court, 482 U.S. 522 (1987)................ 16

Statute Cited:

y E'R tome > 4). en Ran cen res. Sisk! passim

Rules Cited:

Federal Rule of Civil Procedure 26 ................ 7, 17, 18

Supreme Court Rules:

DE scickheacitks (seduce eee a

vi

Contents

Page

Ree AO. SOE: ios Faces Aa ee eee 19

Ree FRA 6 oxewide diseases oe l

Other Authorities Cited:

Amram, The Proposed International Convention on the

Service of Documents Abroad, 51 A.B.A.J. 650 (1965)

5866606404000 ERE RAISE eee 15

Comment, Much Ado About 1782: A Look at Recent

Problems with Discovery in the United States for Use

in Foreign Litigation Under 28 U.S.C. § 1782, 20 Inter-

Agi. 4. Gat. Se Cech incieerr tcc 15, 16

Degnan, Obtaining Witnesses and Documents (or Things),

iOn FE... ded Cee ++ cans 640544055 es eee 15

Smit, /nternational Litigation Under the United States Code,

65 Colum. L. Rav. BORD CHGIRD nu 66s tixies os vues 13, 15

S. Rep. No. 1580, 88th Cong., 2d Sess., reprinted in 1964

RR oe oot SRD OPA re ee 13, 15, 17, 20

APPENDIX

Appendix A — Order of the United States Court of Appeals

for the Second Circuit Filed June 26, 1992......... Al

l

No. 92-00018

In the

Supreme Court of the United States

+

October Term, 1992

UNITED TECHNOLOGIES INTERNATIONAL, INC., P & W

COMMERCIAL ENGINE BUSINESS,

Petitioner,

VS.

MALEV HUNGARIAN AIRLINES,

Respondent.

On Petition for a Writ of Certiorari to the United States Court of

Appeals for the Second Circuit

RESPONDENT’S BRIEF IN OPPOSITION

Respondent Malev Hungarian Aijirlines' (“Malev”)

respectfully submits this brief in opposition to the Petition for a

Writ of Certiorari of United Technologies International, Inc.,

P & W Commercial Engine Business (“Pratt”), dated July 1, 1992.

1. The following information is provided pursuant to Rule 29.1 of this

Court: Malev Hungarian Airlines is a foreign corporation wholly owned by the

Hungarian state.

2 -

STATUTE INVOLVED

This case applies 28 U.S.C. § 1782 (1988), which provides:

(a) The district court of the district in

which a person resides or is found may order

him to give his testimony or statement or to

produce a document or other thing for use in a

proceeding in a foreign or international

tribunal . The order may be made pursuant to a

letter rogatory issued, or request made, by a

foreign or international tribunal or upon the

application of any interested person and may

direct that the testimony or statement be given,

or the document or other thing be produced,

before a person appointed by the court. By

virtue of his appointment, the person

appointed has power to administer any

necessary oath and take the testimony or

statement. The order may prescribe the place

and procedure, which may be in whole or part

the practice and procedure of the foreign

country or the international tribunal, for

taking the testimony or statement or

producing the document or other thing. To the

extent that the order does not prescribe

otherwise, the testimony or statement shall be

taken, and the document or other thing

produced, in accordance with the Federal

Rules of Civil Procedure.

A person may not be compelled to give h

is testimony or statement or to produce a

document or other thing in violation of any

legally applicable privilege.

3

(b) This chapter does not preclude a

person within the United States from

voluntarily giving his testimony or statement,

or producing a document or other thing, for

use in a proceeding in a foreign or

international tribunal before any person and

in any manner acceptable to him.

COUNTERSTATEMENT OF THE CASE

A. Malev’s § 1782 Request

On July 23, 1992, Pratt commenced an action against Malev

in the Municipal Court of Budapest, Hungary (the “Hungarian

Litigation”). In the Hungarian Litigation, Pratt appears to seek

specific performance of an alleged contract for the sale of jet

airplane engines worth tens of millions of dollars. C.A. App. A-

18-46.? Pratt alleges in the Hungarian Litigation that Malev

entered into a contract when it sent a letter responding to one of a

series of Pratt’s proposals to supply Malev with engines for wide-

body aircraft, to be purchased by Malev in the future.

Malev timely filed its response to the complaint in the

Hungarian Litigation, and thereafter commenced this proceeding

pursuant to 28 U.S.C. § 1782 (1988) in the United States District

Court for the District of Connecticut, where Pratt’s principal place

of business is located, to obtain certain depositions and documents

of Pratt. C.A. App. A-118, 131. Pursuant to 28 U.S.C. § 1782

2. Asin Pratt's petition, “C.A. App.” refers to the Appendix on Appeal in

the United States Court of Appeals.

3. Malev’s document request was carefully tailored to the allegations of the

complaint in the Hungarian Litigation and sought those documents necessary to

defend against Pratt’s claims. Besides seeking documents relating to the

negotiations between Malev and Pratt, Malev also sought documents related to

Pratt’s efforts to market its engines to airlines in other parts of Eastern Europe —

efforts which Pratt itself, in its complaint, described as related to and affected by

its dealings with Malev. C.A. App. A-21. Similarly, Malev's deposition notice

sought the testimony of Connecticut based Pratt employees with knowledge of the

negotiations with Malev.

4

(1988), “[t]he district court of the district in which a person resides

or is found may order him to give his testimony or statement or to

produce a document or other thing for use in a proceeding in a

foreign or international tribunal ... upon the application of any

interested person.” 28 U.S.C. § 1782(a).

At a hearing on September 20, 1991 in the Hungarian

Litigation, Malev informed the Hungarian court of its pending

§ 1782 application. The Hungarian court expressly overruled

Pratt’s objections to Malev’s decision to seek discovery in the

United States, noting that the American discovery proceeding “—

as is the case with Hungarian discovery mechanisms — has the

objective of discovering the parties’ positions.and the marshaling

of evidence.” C.A. App. A-206. Therefore, the Hungarian court

held, “[t]he means used to obtain disclosure and to marshal

evidence by the party seeking to offer evidence at trial is

exclusively up to that party.” C.A. App. A-206-207.

Having failed in its attempt to persuade the Hungarian court to

issue an order disapproving of Malev’s effort to obtain discovery

of Pratt under § 1782, Pratt sought to defeat Malev’s § 1782

application in the Connecticut court. C.A. App. A-146, 171. When

Pratt claimed that it would be “unfair” to subject Pratt to discovery

in the United States while discovery of Malev proceeded in

Hungary, Malev repeatedly offered to be bound by the same

discovery rules as Pratt. C.A. App. A-201, A-267, A-272-77, A-

309-11. Pratt has never availed itself of Malev’s offer and never

propounded a single discovery request.

B. The District Court’s Opinion

The district court (Clarie, J.*) issued its opinion on September

30, 1991, denying Malev’s application. The court cited two

grounds for its decision. First, the court concluded that Malev’s

4. Judge Clarie recently retired from the bench.

5

request was “premature and unnecessary,” because “Malev has

never made a formal discovery request upon Pratt & Whitney

before the Hungarian court.” C.A. App. A-320. Second, the district

court opined, without elaboration, that its “involvement would

unnecessarily complicate the case and bring with it significant

reciprocal discovery problems.” It concluded that, “[a]bsent a

request from the Hungarian court to become involved in the

oversight of discovery, Malev’s request is denied.” /d.

C. The Court of Appeals’ Opinion

By decision dated May 5, 1992, the Court of Appeals for the

Second Circuit reversed the district court’s order on the ground

that the court had relied upon improper factors in denying Malev’s

§ 1782 application, and remanded the matter for further

proceedings in accordance with its decision. Pet. App. 3a.° After a

careful review of the legislative history, the Court of Appeals held

that it was an abuse of discretion for the district court to have

denied the request for discovery simply because it was not first

made in the Hungarian Litigation and on the ground that there

might be “reciprocal discovery problems.” Pet. App. 6a, 8a-10a.

The Court of Appeals explained that the purpose of § 1782 is to

“provide efficient means of assistance in our federal courts for

litigants involved in international litigation and ... prompt

foreign courts to follow our generous example and provide similar

assistance to our court systems.” Pet. App. 4a-5a. The Court of

Appeals found that the district court’s opinion failed to advance

these “twin aims” of the statute. Pet. App. 6a.

The Court of Appeals first held that § 1782, its legislative

history and the cases interpreting it do not support a “quasi-

exhaustion requirement” which would obligate Malev te seek

5. As in Pratt's petition, “Pet. App.” refers to the appendix filed with the

Petition for a Writ of Certiorari.

6

disclosure first in the Hungarian Litigation. Pet. App. 6a.

To the contrary, the plain language of 28

U.S.C. § 1782(a) states that “upon the

application of any interested person,” the

district court where the person from whom

discovery is sought resides may order him to

give his testimony or statement or to produce a

document or other thing for use in a

proceeding in a foreign or international

tribunal.

Pet. App. 6a-7a. The appellate court found that such a quasi-

exhaustion requirement would defeat the purposes of the statute,

by undermining the policies of improving procedures for

assistance in foreign proceedings and of prompting foreign courts

to follow our “generous example.” Pet. App. 7a. The decision also

noted that it was unprecedented to deny a § 1782 application

merety because the foreign litigant had not first sought the

discovery in the foreign proceeding. /d.

The Court of Appeals also held that it was improper for the

district court to deny Malev’s application solely because the

Hungarian court had not requested the district court’s assistance in

overseeing discovery. The Court of Appeals noted that, pursuant to

the statute, a request for discovery under § 1782 can be made

“upon the application of any interested person.” Pet. App. 8a

(emphasis in original). By denying Malev’s application on the

further ground that the Hungarian court had not requested its

assistance, “the district court read this provision out of the statute.”

Pet. App. 8a-9a.

The Court of Appeals further held that the district court had

erred when it rejected Malev’s request because of the court’s

concerns about “reciprocal discovery problems.” Noting that it

7

was “not entirely sure what the district court meant when it

invoked the phrase ‘reciprocal discovery problems,’” the Court of

Appeals inferred that the district court was referring to supervising

Pratt’s discovery of Malev, pursuant to Malev’s offer to submit to

discovery in the United States. Pet. App. 9a. In any event, the Court

of Appeals held, the district court was “mistaken to the extent it

believed Malev’s request would necessarily require the district

court to supervise discovery by Pratt & Whitney from Malev. .. .”

Pet. App. 10a (emphasis in original).

The Court of Appeals remanded for further proceedings. The

Court of Appeals suggested that the district court could minimize

any supervisory burdens while acting within § 1782 by utilizing

Fed. R. Civ. P. 26 to “lessen significantly the burden of handling

this discovery.” Pet. App.10a. For example, it suggested that,

pursuant to Rule 26, the district court could require Malev to

submit a discovery plan to the Hungarian court. Pet. App. 1 1a.°

In a dissenting opinion, Judge Feinberg argued that § 1782

should be narrowly construed, not to apply where both of the

litigants are subject to the jurisdiction of the foreign court. Pet.

App. 12a. While acknowledging that “[q]uasi exhaustion may not

be written into the statute ... ,” Judge Feinberg argued that the

principle was nevertheless appropriate, and that, therefore, the

district court had not abused its discretion. Pet. App. 18a.

Moreover, the dissent implied that “need” was a required showing

under § 1782, despite the absence of such a requirement in the

statute, its legislative history, or the applicable case law. Finally,

while conceding that the majority was correct, that “[o]f course,

the statute does not require reciprocal discovery ...,” and without

6. Indeed, as Malev advised the district court (Pet. App. 26a-27a), Malev

did just that by letter dated June 29, 1992.

8

acknowledging that Malev had offered to provide Pratt with equal

discovery rights, the dissent nonetheless insisted that “fairness”

suggests that Malev should not be afforded the right to discovery

under § 1782 while Pratt is purportedly limited to the discovery

permitted by the foreign system. Pet. App. 18a-19a (emphasis in

original).

D. Other Proceedings

Following issuance of the Court of Appeals’ decision and

order, Pratt filed a petition for rehearing containing a suggestion

for rehearing en banc. By order dated June 26, 1992, the Court of

Appeals denied the petition for rehearing and refused to rehear the

case en banc. Resp. App. Al.’

Additionally, while Malev’s appeal to the Court of Appeals

was pending, the Hungarian court issued a partial judgment which

discussed various aspects on the merits of Pratt’s lawsuit, and

included certain purported findings of fact, made without the

benefit of any evidence which Malev may have adduced as a result

of the discovery it sought pursuant to § 1782. The translation of the

opinion, and the opinion’s import, are disputed by.the parties, and,

in any event, the opinion is not before this Court.* Malev has

lodged an interlocutory appeal of the Hungarian court’s partial

judgment, and its purported findings of fact, in the Hungarian

Supreme Court, which has the power to engage in a de novo review

of the lower court’s opinion and may consider evidence not

submitted tothe court below.’ See Petition at 9, n. 6. Accordingly,

7. “Resp. App.” refers to the appendix filed with this Brief in Opposition.

8. Although Pratt cites to the Hungarian court’s opinion, it is not a part of

the Appendix before the Court of Appeals, aor Pratt’s appendix to its Petition.

Petition at 8-9. (“Petition” refers to Pratt’s Petition for a Writ of Certiorari.)

9. The Hungarian Supreme Court will hear arguments on Malev’s appeal on

September 25, 1992.

* ,

a

the discovery which Malev seeks in its § 1782 application is of

vital importance, not only in connection with the issues remaining

before the Hungarian trial court, but also in connection with

Malev’s appeal to the Hungarian Supreme Court.

SUMMARY OF ARGUMENT

There is no reason for this Court to grant Pratt’s Petition for a

Writ of Certiorari. The decision of the Court of Appeals does not

conflict with, and indeed, is in accord with, the decisions of other

courts of appeals which have considered § 1782. Nor does this case

present any significant legal issue which would justify granting a

writ of certiorari. Sup. Ct. R. 10.

The Court of Appeals’ decision is entirely consistent with the

purposes of the statute and other decisions which have interpreted

§ 1782. Contrary to Pratt’s contention, a § 1782 applicant is not

required to demonstrate “need” for the discovery sought. The

“twin aims” of the statute — to provide efficient and generous

assistance to participants in international litigation and by example

to encourage foreign countries to provide similar. means of

assistance -— are not advanced by imposing a requirement of

“need” fashioned by the district court. Further, these twin aims are

promoted by the Court of Appeals’ decision. That decision rejects

the additional burdens which would be placed upon international

litigants by the district.court’s decision and so, by- “generous

example,” encourages foreign jurisdictions to promote the

principle of international cooperation embodied in § 1782. Pet.

App. 7a.

Nor does the Court of Appeals’ decision conflict with

decisions of other circuits. Although Pratt argues that the decisions

in John Deere, Ltd. v. Sperry Corp., 754 F.2d 132 (3d Cir. 1985),

and Lo Ka Chun v. Lo To, 858 F.2d 1564 (11th Cir. 1988), cannot be

“reconciled” with the Second Circuit’s opinion, no real conflict

~

10

exists. The decisions of the Third and Eleventh Circuits deal

principally with the issue of whether the discoverability of the

requested information in a foreign court should be a factor

informing a district court’s decision under § 1782. In light of the

Hungarian court’s rulings that the parties were free to marshal

evidence by any means of their choosing, the Court of Appeals had

no need or occasion to consider this issue. Therefore, there is no

question that this decision does not conflict with those cited by

Pratt. Moreover, under no interpretation may the Court of Appeals’

decision be considered violative of principles of international

comity. To the contrary, because the decision ensures that a United

States court will not unnecessarily be required to interpret foreign

law, it promotes such principles.

———

1]

REASONS FOR DENYING THE WRIT

I.

THE WRIT SHOULD BE DENIED BECAUSE THIS

CASE DOES NOT PRESENT SIGNIFICANT LEGAL

ISSUES OR OTHER SPECIAL AND IMPORTANT

REASONS FOR GRANTING THE WRIT.

Pratt contends that the Court of Appeals’ decision “conflicts

with the text and evident purpose of” § 1782 in permitting

assistance by United States courts to foreign litigants when such

assistance is not, according to Pratt, “necessary, equitable,

efficient and consistent with notions of international comity.”

Petition at 10. Pratt deliberately misconstrues the Court of

Appeals’ decision. Resting its decision upon notions of

international comity entirely consistent with the terms and

purposes of the statute, the Court of Appeals properly rejected the

proposition that a United States court, when considering an

application made pursuant to § 1782, should attempt to determine

the “need” for the requested discovery under foreign law. Thus,

Pratt’s theoretical discussion of policies which are not implicated

by the facts of this case, or by the Court of Appeals’ decision, fails

to present issues worthy of an exercise of this Court’s discretion.

A. Review By This Court Would Be Premature

Pratt’s Petition does not raise any substantive issues which

need be addressed by the Court at this time. Pratt’s primary

contentions — that the discovery is not necessary and that it is

unfair for Malev to be afforded United States discovery of Pratt

while Pratt is left to the Hungarian court’s procedures — have

either already been addressed by Malev’s commitment to engage

in reciprocal discovery or may be addressed on remand to the

district court. With regard to Pratt’s concern about possible

12

unfairness, it is undisputed that Malev has agreed to engage in

reciprocal discovery in the United States. C.A. App. A-267, A-

272-77, A-309-11. Therefore, while the issue of reciprocal

discovery under § 1782 may be an interesting academic question, it

is simply not presented on these facts. In any event, as the Court of

Appeals recognized, the availability of reciprocal discovery is

neither a requirement for granting, nor even a factor to be

considered on, an application under § 1782. See infra at 15-17.

Since the district court on remand may address Pratt’s

concerns — as, indeed, the Court of Appeals pointed out (Pet. App.

lla) — no practical purpose would be served by this Court’s

review of this case at the present time. Such review would

therefore be premature. See Brotherhood of Locomotive Firemen

& Enginemen v. Bangor & A. R. Co., 389 U.S. 327, 328 (1987)

(denying certiorari “because the Court of Appeals remanded the

case [and thus] it is not yet ripe for review by this Court”);

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 258

(1916) (certiorari jurisdiction is “to be exercised sparingly, and

only in cases of peculiar gravity and general importance, or in

order to secure uniformity of decision”); American Constr. Co. v.

Jacksonville, T & K.W.R. Co., 148 U.S. 372, 384 (1893) (“this

court should not issue a writ of certiorari to review a decree of the

circuit court of appeals on appeal from an interlocutory order,

unless it is necessary to prevent extraordinary inconvenience and

embarrassment in the conduct of the cause’’).'°

10. Equally premature is Pratt’s contrived concern about the effects of the

Court of Appeals’ decision on international arbitrations. When (and if) a § 1782

application arises in that context, United States courts will be altogether competent

to apply the statute with due deference to the needs of international arbitrations.

Cf. Burton v. Bush, 614 F.2d 389, 390-91 (4th Cir. 1980)(no discovery allowed in

- arbitral proceedings under the Federal Rules of Civil Procedure); Mississippi

Power Co. v. Peabody Coal Co., 69 F.R.D. 558, 566-67 (S.D. Miss. 1976)(same;

citing authorities).

13

B. “Need” Is Not An Appropriate Factor Under § 1782

Nowhere in the legislative history of § 1782 or in the cases

interpreting the statute is “need” set forth as a factor to be

considered in determining an application for discovery by a

foreign litigant or other interested person. Indeed, a requirement

that an applicant show need to obtain § 1782 assistance would

defeat the liberal policies so clearly reflected in the legislative

history. Section 1782 is designed to encourage United States

courts to assist in foreign proceedings, in the hope that other

nations will be inspired to assist United States courts and litigants.

In re Letter of Request from Crown Prosecution Serv. of United

Kingdom, 870 F.2d 686, 690 (D.C. Cir. 1989) (“Crown

Prosecution” ); In re Request for Assistance from Ministry of Legal

Affairs of Trinidad & Tobago, 848 F.2d 1151, 1152-54 (11th Cir.

1988), cert. denied, 488 U.S. 1005 (1989) (“Trinidad”); John

Deere Ltd. v. Sperry Corp., 754 F.2d 132, 135 (3d Cir. 1985); S.

Rep. No. 1580, 88th Cong., 2d Sess., reprinted in 1964

U.S.C.C.A.N. 3782, 3783, 3788. As “the leading commentary”

observes, “[t]he basic rule should be that assistance is rendered

unless important considerations affecting concrete and vital

American interests require its refusal.” Crown Prosecution, 870

F.2d at 690, citing Smit, International Litigation Under The

United States Code, 65 Colum. L. Rev. 1015, 1029, n. 87 (1965).

Pratt would impose a requirement that the party seeking

discovery demonstrate that the information sought in the United

States proceeding was “necessary and appropriate under the rules

of the foreign forum,” to promote “comity objectives.” Petition at

18. Not only would such a requirement violate the very principles

§ 1782 was adopted to advance, but compelling a United States

court to interpret the “need” for certain evidence under foreign law

would violate, not promote, such comity objectives. See John

Deere Lid. at 136 (“To require that a district court undertake a more

extensive inquiry into the laws of the foreign jurisdiction [beyond

14

mere discoverability] would seem to exceed the proper scope of

section 1782”); In re Request for Judicial Assistance from the

Seoul Dist., Criminal Court, Seoul, Korea, 555 F.2d 720, 723 (9th

Cir. 1977) (federal courts should not feel obliged to interpret

foreign law in responding to § 1782 requests); Jn re Asta Medica,

S.A., No. 91328-P-H, 1992 WL 119080 (D. Me. May 22, 1992)

(neither § 1782, its legislative history, or academic commentary

requires United States courts to be burdened with analyzing

foreign law, including issue of discoverability; application under

§ 1782 granted); Jn re Request for Assistance from Ministry of

Legal Affairs of Trinidad and Tobago, 117 F.R.D. 177, 178 (S.D.

Fla. 1987) (“Our courts should not become entangled in

interpreting foreign law when deciding whether to grant requests

for judicial assistance [under § 1782]... . Foreign tribunals are far

more competent to decide issues of their own making than are

United States courts’’)." a

Underlying Pratt’s argument is its contention that Malev

should have sought the discovery in Hungary before applying to

the district court. However, as the Court of Appeals correctly held,

§ 1782 does not contain a “quasi-exhaustion requirement.” Pet.

App. 6a. In fact, no court interpreting § 1782 has ever held that a

litigant was required first to seek its discovery in the foreign court

— nor has any court indicated that the litigant had first sought

discovery in the foreign forum. For example, in John Deere, Lid.,

754 F.2d 132, Deere was granted discovery pursuant to § 1782

despite the apparent absence of any attempt to first obtain the same

information through Canadian procedures.'? Further, as the Court

11. Pratt distorts the academic commentary it offers at pages 11-12 of its

Petition. Neither supporis the view that “need” is a requirement of § 1782. Rather,

they observe self-evidently that § 1782 is “needed” only where voluntary

cooperation — an option Pratt has obviously rejected — is unavailable.

12. Subsequent to the district court’s denial of Deere’s § 1782 application,

Deere requested discovery in the Canadian litigation. Jd. at 137.

a eee ell

15

of Appeals recognized, requiring applicants first to seek discovery

in the foreign jurisdiction would “undermine the policy of

improving procedures for assistance to foreign and international

tribunals by imposing an additional burden on persons seeking

assistance from our federal courts for matters relating to

international litigation.” Pet. App. 7a.

C. Reciprocity Is Not Required By § 1782

Pratt also argues that discovery must be “fair or equitable”

under § 1782. Petition at 13. One-sided discovery, according to

Pratt, is not fair, and thus should not be condoned. /d. at 20. This

argument totally ignores the “twin aims” of § 1782 — to assist

participants in international proceedings and to encourage foreign

countries by example."

“It is not unfair to say that Public Law 88-169 [enacting

present Section 1782] is a one-way street. It grants wide assistance

to others, but demands nothing in return. It was deliberately drawn

this way ....” Amram, The Proposed International Convention on

the Service of Documents Abroad, 51 A.B.A.J. 650, 651

(1965)(emphasis in original). “[T]he United States decided over a

decade ago to act unilaterally, without requiring reciprocity or

even comity.” Degnan, Obtaining Witnesses and Documents (or

Things), 108 F.R.D. 223, 232 (1986). The undeniable purpose of

§ 1782 was to stimulate foreign reciprocation by generous

example, not to demand “reciprocity” as a precondition to

assistance. See 1964 U.S.C.C.A.N. 3794; Smit, supra, 65 Colum.

L. Rev. at 1018-1019. Thus, “it is inappropriate for U.S. courts tc

consider the existence of reciprocity in the calculus of determining

whether to honor requests for information based on section 1782.”

Comment, Much Ado About 1782: A Look at Recent Problems with

13. * s set forth supra at 4, Malev's offer to submit to discovery in the U.S.

court — despite the lack of any request by Pratt — renders Pratt’s argument on this

point irrelevant.

16

Discovery in the United States for Use in Foreign Litigation Under

28 U.S.C. § 1782, 20 Inter-Am. L. Rev. 429, 452 (1989). In John

Deere, the Third Circuit Court of Appeals found that

[t]he liberal intent to provide judicial

assistance whether or not reciprocity exists

has been acknowledged as a primary statutory

goa! since section 1782’s inception...

. . . [A]lthough the district court was not

prohibited from giving the absence of

reciprocity some consideration in the exercise

of its discretionary power, its decision should

not have been predicated upon a finding of

reciprocity.

754 F.2d at 135.

Pratt’s reliance on Société Nationale Industrielle Aérospatiale

v. United States District Court, 482 U.S. 522 (1987), Petition at 14-

15, is entirely misplaced. Société Nationale involved a conflict

between the Hague Convention on the Taking of Evidence and the

Federal Rules of Civil Procedure — a comparison irrelevant to the

reciprocity issue under § 1782 raised by #ratt. Moreover, that case,

far from supporting Pratt’s argument, actually refutes it in its

discussion of both § 1782 and the Hague Convention. Thus, in

Société Nationale, this Court described § 1782 as an amendment

“to grant foreign litigants, without any requirement of reciprocity,

special assistance in obtaining evidence in the United States.” Jd.

at 529-30 (emphasis added). The Hague convention, by contrast,

the Court stated, was designed to “improve mutual judicial

cooperation.” /d. at 534 (emphasis added).

Finally, Pratt’s argument that one-sided discovery conflicts

with the legislative intent of § 1782 rings hollow in light of the

17

numerous Cases which have interpreted the statute as authorizing

assistance with respect to foreign criminal matters despite the

obvious fact that no discovery in the United States of foreign

prosecutors was expected or offered. See, e.g., Crown Prosecution,

870 F.2d 686; Trinidad, 848 F.2d 1151: In re Letters Rogatory from

Tokyo Dist., Tokyo, Japan, 539 F.2d 1216 (9th Cir. 1976); In re

Letter Rogatory from Justice Court, Dist. of Montreal, Canada,

523 F.2d 562 (6th Cir. 1975).'4

D. The Court of Appeals’ Decision Will Not Burden the Courts or

Penalize Litigants

Although Pratt repeatedly argues that the Court of Appeals’ -

decision “transforms the judicial role under the statute to one

informed exclusively by Rule 26, Fed. R. Civ. P.,” Petition at 19,

the decision actually does nothing of the sort. It merely held that

the district court, in this case, had considered improper factors in

denying Malev’s application. Contrary to Pratt’s implication, the

Court of Appeals did not limit the discretionary nature of a district

court’s § 1782 determination. The Court of Appeals merely

Outlined the powers available to the trial court “to lessen

significantly” the burden of handling discovery, while acting

within the requirements of § 1782.'5Pet. App. 10a. In its reference

to Rule 26, the Court of Appeals both protected the “twin aims” of

§ 1782 and prudently addressed the administrative concerns of the

district court. -

14. As the Court of Appeals correctly recognized, district courts may

correct any pesseived imbalance in discovery. Pet. App. lla. See 28 U.S.C.

§ 1782(a) (providing that a court may prescribe the discovery procedure to be

followed, which may be, in whole or in part, the discovery practice and procedure

of the foreign country).

15. The legislative history and the text of § 1782 expressly provide that the

court, in supervising discovery, may follow “the foreign or international practice”

or “the appropriate provisions of the Federal Rules of Civil Procedure.” 1964

U.S.C.C.A.N. 3789; 28 U.S.C. § 1728(a).

18

The argument that the Court of Appeals’ decision will burden

United States courts beyond the contemplation of the statute is

legally and factually unsupported. Any such _ increased

involvement would constitute the plainly foreseeable result of the

statutory scheme. As the Court of Appeals held, “[wJe are not at

liberty to second-guess the policy choices of our Congress.” Pet.

App. 7a. Moreover, as the Court of Appeals’ decision recognized,

the statute itself provides ample mechanisms for the trial court to

“achieve [the statute’s] objective of minimizing the burdens

involved with supervising ... discovery ... while acting within the

confines of 28 U.S.C. § 1782." Pet. App. 10a-1 1a.

Pratt’s concerns that American nationals will be “penalized”

by the Court of Appeals’ decision is unwarranted. The statute is not

intended to reach Americans only; nationals of all countries

“resid{ing] or . . . found” in the United States or holding

documentary evidence in this country are subject to § 1782. 28

U.S.C. § 1782. Even if a party to an international litigation —

whether American or foreign — is granted discovery pursuant to

§ 1782 because its opponent has evidence located in the United

States, the district court has ample authority, under the statute and

the Federal Rules, to protect all parties from perceived discovery

abuses.

16. For example, the trial court may limit the scope and method of discovery

under Fed. R. Civ. P. 26; it may appoint a magistrate or other person to supervise

the discovery and administer oaths; and it may otherwise prescribe the practice and

procedure for discovery. 28 U.S.C. § 1782.

=

19

Il.

THE WRIT SHOULD BE DENIED BECAUSE THIS

CASE DOES NOT CONFLICT WITH ANY OTHER

DECISION OFA UNITED STATES COURT OFAPPEALS.

Pratt argues that the Court of Appeals’ decision failed “to

reconcile” its ruling with certain decisions of the Third and

Eleventh Circuits.'’ Petition at 17. Pratt’s attempt to present a

conflict between the Court of Appeals’ decision and decisions of

other circuit courts of appeals not only misinterprets the decision

in this case, but ignores the factual record presented by Pratt’s

Petition. The entire premise of Pratt’s argument in this regard is

fatally flawed — the Court of Appeals’ decision does not require

district courts “to supplant the rules of foreign tribunals by

granting American-style discovery under section 1782 even where

such procedures are unavailable or offensive to the forei gn tribunal

in charge of the case.” Petition at 16. Indeed, this issue was not

even discussed by the Court of Appeals since, as Pratt concedes,

and the district court held, discovery is available in the Hungarian

court. Petition at 5, 12.

Pratt contends that the Third Circuit’s opinion in John Deere,

Lid., 754 F.2d 132, and the Eleventh Circuit’s opinion in Lo Ka

Chun, 858 F.2d 1564, are at odds with the Court of Appeals’

decision here. According to Pratt, both of the cited cases stand for

the principle “that section 1782 does not permit a foreign litigant to

make an ‘end run’ around the rules of foreign tribunals that restrict

discovery.” Petition at 17. Nothing in the Court of Appeals’

decision here contradicts the principle. Indeed, because the

Hungarian court’s authority to grant discovery was not at issue, the

17. A supposed failure “to reconcile” is, on its face, not a basis to grant the

petition. See Sup. Ct. R. 10.1(a) (noting that the existence of conflicting rulings by

different circuit courts on the same matter may Constitute a basis to grant a petition

for certiorari).

20

Court of Appeals was not invited to address the propriety of

granting a § 1782 application where the rules of the foreign

tribunal restrict discovery. Thus, the Court of Appeals’ decision

cannot plausibly be interpreted as conflicting in any manner with

John Deere Ltd. and Lo Ka Chun.

The Court of Appeals’ opinion also cannot be read, as Pratt

contends, as sanctioning an “end run” around the foreign tribunal’s

authority. Indeed, that no such strategy was even attempted here is

clear. Malev informed the Hungarian court of its § 1782

application and the Hungarian court was obviously not troubled by

the United States court’s involvement. It expressly held, after

Malev advised the court of its application, that “[t]he means used

[by Malev] to obtain disclosure and to marshal evidence . . . is

exclusively up to that party.” C.A. App. A-206-207. Moreover,

even absent such approval by the Hungarian court, § 1782 provides

that an application may be made by any “interested person,” a

provision which authorizes the district court to review an

application regardless of whether the foreign court authorized

discovery in the United States court.'*28 U.S.C. § 1782.

18. The unambiguous text of the statute does not even hint at the limitation

which Pratt invites this Court to adopt —that “[sJection 1782 was not intended to

create a presumption that United States discovery is available in favor of one party

to a foreign proceeding against its adversary.” Petition at 17 n. 9. This is fatal to

Pratt’s contention. See American Tobacco Co. v. Patterson, 456 U.S. 63, 68

(1982)(statute should be interpreted according to plain and unambiguous text);

Caminetti v. United States, 242 U.S. 470, 485 (1917)(same). Further, the Senate

Report accompanying the provision which enacted § 1782 expressly states that an

“interested person” under the statute includes “a party to foreign or international

litigation.” 1964 U.S.C.C.A.N. 3789 (emphasis added).

21

~

CONCLUSION .°

For the reasons set forth above, the Petition for a Writ of

Certiorari should be denied.

Dated: July 31, 1992

Respectfully submitted,

° ROBERT C. BATA

Counsel of Record

ELIZABETHA. MULLINS

KENNETH PASQUALE

Stroock & Stroock & Lavan

7 Hanover Square

New York, New York 10004

(212) 806-5400

BARRY H. GARFINKEL

MARCO E. SCHNABL

Skadden Arps Slate Meagher &

Flom

919 Third Avenue

New York, New York 10022

(212) 735-3000

Attorneys for Respondent

Malev Hungarian Airlines

Al

APPENDIX A — ORDER OF THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

FILED JUNE 26, 1992

UNITED STATES COURT OF APPEALS

FCR THE

SECOND CIRCUIT

At a stated term of the United States Court of Appeals for

the Second Circuit, held at the United States Courthouse in the

City of New York, on the 26th day of June one thousand nine

hundred and ninety-two.

DOCKET NUMBER: 91-7949

In the Matter of the Application of

MALEV HUNGARIAN AIRLINES,

Plaintiff.

MALEV HUNGARIAN AIRLINES,

Plaintiff-Appellant,

Ws

UNITED TECHNOLOGIES INTERNATIONAL

INCORPORATED; PRATT & WHITNEY COMMERCIAL

ENGINE BUSINESS,

Defendants-Appellees.

A petition for rehearing containing a suggestion that the action

. be reheard in banc having been filed herein by defendants-

appellees, United Technologies International Incorporated and

Pratt & Whitney Commercial Engine Business.

Upon consideration by the panel that decided the appeal, it is

A2

Appendix A

Ordered that said petition for rehearing is DENIED.

It is further noted that the suggestion for rehearing in banc

has been transmitted to the judges of the court in regular active

service and to any other judge that heard the appeal and that

no such judge has requested that a vote be taken thereon.

s/ Elaine B. Goldsmith

ELAINE B. GOLDSMITH,

Clerk