Brandi-Dohrn v. IKB DEUTSCHE INDUSTRIEBANK AG
673 F.3d 76
| 2d Cir. | 2012Background
- Brandi-Dohrn, a shareholder of IKB, filed a securities-fraud action against IKB in Germany.
- He sought discovery under 28 U.S.C. § 1782 from three non-parties for use in the German action.
- The district court granted Brandi-Dohrn's ex parte application on July 27, 2011 and issued subpoenas.
- Before producing any materials, IKB moved to vacate or quash the subpoenas; the district court granted the motion on November 16, 2011.
- Brandi-Dohrn appealed; this court reversed and reinstated the July 27, 2011 order, directing the mandate to issue.
- The court held that the “for use” requirement does not depend on the foreign admissibility of discovered evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ‘for use’ requires admissibility in the foreign court | Brandi-Dohrn contends the district court misread the law | IKB argues admissibility in foreign court is a controlling factor | No; admissibility not required for ‘for use’ |
| Whether the district court abused its discretion by delaying based on foreign-law admissibility concerns | Discovery should be allowed to aid the German tribunal | Discovery would be burdensome and unlikely to be used | Yes, district court abused discretion by using admissibility as a proxy for ‘for use’ |
| Whether Intel Corp. v. AMD limits §1782 discovery when foreign-trial admissibility is uncertain | Intel permits broader discovery without foreign-admissibility constraints | Intel does not require foreign admissibility, but cautions on use | Yes; Intel supports allowing discovery without resolving foreign admissibility |
Key Cases Cited
- Intel Corp. v. Advanced Micro Devices, Inc., 542 F.3d 241 (U.S. Supreme Court 2004) (rejects foreign-discoverability rule; no mandatory foreign admissibility requirement)
- In re Gianoli Aldunate, 3 F.3d 54 (2d Cir. 1993) (discusses broad §1782 scope)
- Euromepa S.A. v. R. Esmerian, Inc., 154 F.3d 28 (2d Cir. 1998) (discusses abuse of discretion and harassing use of §1782)
- Schmitz v. Bernstein Liebhard & Lifshitz LLP, 376 F.3d 79 (2d Cir. 2004) (sets framework for §1782 discretionary review)
- In re Ishihara Chemical Co., 251 F.3d 120 (2d Cir. 2001) (addressed ‘for use’ in light of pending foreign proceedings (overruled by Intel))