680 F. App'x 37
2d Cir.2017Background
- CMS (Catalyst Managerial Services, DMCC) petitioned under 28 U.S.C. § 1782 to compel document discovery from sixteen banks in the U.S. for use in an ongoing UK wrongful-contract-termination action against LAP (Libya Africa Investment Portfolio).
- The U.S. District Court for the Southern District of New York granted the § 1782 petition; LAP intervened and appealed that grant to the Second Circuit.
- The district court and parties agreed the statutory prerequisites for § 1782 relief were satisfied; the appeal challenged the district court’s discretionary application of the Intel factors.
- LAP argued the discovery was unduly burdensome and disproportionate, that the documents were within the UK court’s reach (so § 1782 relief was unnecessary), and that CMS sought to circumvent foreign proof-gathering restrictions.
- The district court found CMS showed the requested bank records were relevant to its lost-profits damages claim and could be used to test the completeness/accuracy of LAP’s UK productions; it also entered a protective order for produced materials.
- The Second Circuit reviewed for abuse of discretion and affirmed the district court’s order granting discovery.
Issues
| Issue | Plaintiff's Argument (CMS) | Defendant's Argument (LAP) | Held |
|---|---|---|---|
| Whether requested bank records are unduly burdensome/proportional under Rule 26 | Records are relevant to lost-profits damages and to verifying LAP’s financial productions | Request is overbroad, irrelevant to UK proceeding, and disproportionate | Court: Not an abuse of discretion — relevance to UK damages and concerns over LAP’s UK productions justify discovery |
| Whether documents are within foreign tribunal’s reach so Intel factor favors denial | §1782 appropriate even if foreign court could in theory order production; foreign court had raised concerns about LAP’s productions | Documents are accessible to UK court via orders to LAP/third parties, so §1782 unnecessary | Court: First Intel factor does not bar discovery; checking accuracy of LAP’s productions justified §1782 assistance |
| Whether the §1782 request circumvents foreign proof-gathering restrictions (Third Intel factor) | Discovery would supplement, not circumvent, UK discovery and is not barred by prior UK procedural rulings | CMS seeks to circumvent UK restrictions and revive evidence precluded in earlier stay proceedings | Court: No abuse of discretion — UK rulings were context-specific and did not preclude later use; receptivity of UK court supported granting discovery |
| Whether district court failed to apply Intel/abuse discretion standard | District court considered Intel factors and proportionality, questioned counsel, and reviewed exhibits | District court did not perform proper proportionality analysis and ignored intrusiveness to LAP | Court: No abuse of discretion — district court engaged in the required analysis and its factual assessments were permissible |
Key Cases Cited
- Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76 (2d Cir. 2012) (standard of review for § 1782 discretionary rulings)
- Mees v. Buiter, 793 F.3d 291 (2d Cir. 2015) (§ 1782 discovery must further twin aims of statute; district courts should apply Rule 26 principles for overbreadth/burden)
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (Sup. Ct. 2004) (articulates four discretionary factors for § 1782 requests)
- Euromepa, S.A. v. R. Esmerian, Inc., 154 F.3d 24 (2d Cir. 1998) (§ 1782 cannot be used to obtain discovery for enforcing an already-adjudicated foreign judgment)
- In re Malev Hungarian Airlines, 964 F.2d 97 (2d Cir. 1992) (applicant need not first seek discovery from foreign tribunal before § 1782 relief)
- In re Gianoli Aldunate, 3 F.3d 54 (2d Cir. 1993) (availability of foreign discovery is not dispositive where § 1782’s twin purposes justify relief)