148 F.4th 54
2d Cir.2025Background
- Banoka and related European individuals/corporations sought U.S. discovery under 28 U.S.C. § 1782 to support contemplated fraud litigation in England related to a failed hotel transaction in Paris, originally set up with Westmont International Development Inc. (“Westmont”).
- The Elliott Funds (investment funds) were set to provide funding for the hotel transaction that fell through in early 2020; Elliott Management Corp. (EMC) and Elliott Investment Management L.P. (EIM) acted as U.S.-based advisors.
- The exclusivity agreement for the sale contained a forum-selection clause, granting English courts exclusive jurisdiction over disputes.
- Banoka’s extensive discovery requests were first denied in the Southern District of Texas; after that failure, Banoka filed a new petition in the Southern District of New York against Elliott entities.
- The district court (SDNY) partially granted limited discovery but mostly denied the requests, finding the requests overbroad and burdensome, and gave weight to the forum-selection clause; Banoka appealed the denial as to certain Elliott entities.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court erred in weighing the forum-selection clause (Intel factor 3) against discovery | The district court improperly gave weight to the forum-selection clause; only proof-gathering restrictions should matter under Intel factor 3 | The forum-selection clause is relevant and should count against U.S. discovery under § 1782 | No abuse of discretion; district court may consider contractual forum preferences |
| Whether Banoka’s discovery requests were unduly burdensome (Intel factor 4) | Requests were reasonable and proportionate given the transaction's size | Requests were overbroad, international in scope, and mostly targeted documents outside U.S. entities’ control | No abuse of discretion; requests were overbroad and burdensome |
| Jurisdiction to hear the appeal | Order wasn’t final because subpoenas for Elliott Funds not fully ruled on | Banoka abandoned further subpoenas, making order final | Appeal proper; jurisdiction affirmed |
| Whether the English proceeding was “reasonably contemplated” for § 1782 use | Suit was reasonably contemplated given concrete steps | Banoka lacked sufficient grounds for a suit; future proceeding speculative | Court did not reach this issue due to affirming on Intel factors |
Key Cases Cited
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) (establishes the four discretionary factors for granting § 1782 discovery)
- Chevron Corp. v. Berlinger, 629 F.3d 297 (2d Cir. 2011) (§ 1782 discovery orders are appealable when dispositive)
- Kiobel by Samkalden v. Cravath, Swaine & Moore LLP, 895 F.3d 238 (2d Cir. 2018) (Intel factors are non-exclusive and courts have broad discretion)
- Mees v. Buiter, 793 F.3d 291 (2d Cir. 2015) (discussion of foreign proof-gathering restrictions and Intel's discretionary framework)
- In re del Valle Ruiz, 939 F.3d 520 (2d Cir. 2019) (location of evidence pertinent to burden under § 1782)