NY Federal Court Allows Foreign Litigants to Obtain Documents Located Outside US

Bilzin Sumberg Publication
February 13, 2020

Most practitioners in the area of international law know about 28 U.S.C. Section 1782. This statute has long allowed litigants in foreign tribunals to use U.S. courts to compel persons “residing or found” in the court’s territory to provide discovery. Because foreign tribunals typically permit less discovery than U.S. courts, Section 1782 is an important tool for foreign litigants in gathering evidence.

U.S. courts have been split on whether Section 1782 can be used to compel discovery of documents located outside of the United States. In 2004, the U.S. Court of Appeals for the Seventh Circuit (based in Chicago) found that Section 1782 cannot be used to obtain foreign documents. But in 2016, the Eleventh Circuit (based in Atlanta) disagreed. Litigants based South Florida have grown accustomed over the past few years to an extra-territorial Section 1782.

Now, practitioners in New York, Connecticut and Vermont will also become used to a wide-ranging Section 1782. Late last year, the Second Circuit aligned itself with the Eleventh Circuit, finding that Section 1782 can be used to obtain foreign documents. In the case of In re del Valle Ruiz, the Second Circuit concluded that an applicant under Section 1782 can reach documents that the respondent possesses, has custody of or controls anywhere in the world.

But the long reach of Section 1782 does not matter if the applicant cannot convince the district court to exercise jurisdiction over the respondent in the first place. The Second Circuit ruled on this issue as well, holding that a respondent must comply with Section 1782 only if it is subject to personal jurisdiction, whether of the “general” or “specific” variety.

It is easy for a corporation to know whether it will be subject to general personal jurisdiction in a given federal district court. If the corporation is headquartered in that court’s territory, and if the corporation is incorporated in that territory, then that corporation is subject to general jurisdiction there. Corporations based in international hubs like New York (Second Circuit) or Miami (Eleventh Circuit) now know that they will be subject to Section 1782 demands for worldwide documents. (The rules for other types of entities, such as LLCs, will vary, and are beyond the scope of this article.) Attorneys representing Section 1782 applicants should attempt to initiate the actions in courts where the respondent is subject to general jurisdiction, because it is easy for a court to make that determination.

Future Section 1782 litigation will likely focus on the contours of specific personal jurisdiction, which is a murkier area. Litigants in the United States know that an analysis of specific jurisdiction is very fact-intensive and sometimes difficult to predict. The same will be true under Section 1782.

The Second Circuit did provide some guidance for practitioners on this jurisdictional question. First, the respondent’s contacts with the forum do not have to relate to the underlying, foreign litigation; instead, the contacts need only relate to the discovery sought under Section 1782.

Second, the Second Circuit held that the respondent’s forum contacts must have some causal relationship to the discovery sought. The Second Circuit provides two possibilities here. If the contacts are the “primary or proximate reason that the evidence sought is available at all,” then jurisdiction is established. Alternatively, if the contacts are not the “primary or proximate” cause, but the petitioner can show that the evidence would not be available “but for” the conducts and that the contacts are relatively significant, then jurisdiction is established. Counsel for Section 1782 applicants will need to have their factual record ready to go—often in the form of a sworn affidavit/declaration from a witness—to prove specific jurisdiction at the outset of the Section 1782 dispute.

Future Section 1782 litigation will also focus on the typical issues familiar to litigants seeking (and resisting) discovery in the United States, including objections to the relevance, scope, burden and proportionality of the discovery. Like specific jurisdiction, discovery objections are very fact-intensive and the outcomes are not always easy to predict.

Coming Section 1782 disputes might closely resemble disputes concerning third-party subpoenas. Just as parties on the receiving end of a subpoena argue that the subpoena is unduly burdensome, so, too, will the respondents in Section 1782 litigation argue that the Section 1782 application is similarly defective. It is likely that courts will draw upon case law regarding discovery in the subpoena context to develop the law for the nascent area of Section 1782 litigation.

In sum, the issue of whether Section 1782 applies abroad is now settled in three circuits, and the trend is clearly in favor of interpreting Section 1782 as extraterritorial. But the threshold issue of whether a company is subject to Section 1782 in a forum besides its “home,” as well as discovery-specific objections, will have to be litigated case-by-case going forward.

Given that many companies (and individuals) in Florida have a presence—and documents—abroad, such companies can expect to be possible targets of Section 1782 applications for discovery going forward. Conversely, South Florida companies (and individuals) involved in foreign litigation should not forget to use a Section 1782 application themselves when the foreign adversary is subject to jurisdiction in Florida (or New York, for that matter).

  *This article was republished with permission from Daily Business Review. Click here to access the publication.
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