In Re: Application of Bonsens.org for an Order, 95f4th75

BonSens.org, a non-profit organization, sought discovery from Pfizer Inc. under 28 U.S.C. § 1782 in the U.S. District Court for the Southern District of New York to assist in French litigation against the French government regarding the legality of certain provisions in a COVID-19 vaccine supply contract.
The French Administrative Court dismissed BonSens' initial suit for lack of jurisdiction, citing a contract clause selecting Belgian law and Belgian courts for disputes.
BonSens appealed to the Paris Administrative Court of Appeal, which also dismissed for lack of jurisdiction. BonSens then appealed to the Conseil d’État, France’s highest administrative court.
During the pendency of the French appeal, BonSens sought U.S. discovery of communications between Pfizer’s CEO and the President of the European Commission about the Advance Purchase Agreement (‘APA’).
The district court denied the § 1782 application, finding the requested discovery was not "for use" in the French proceeding, as required under the statute, because the only pending issue in France was jurisdiction, and the discovery was only relevant to the merits, not jurisdiction.
BonSens appealed the denial to the Second Circuit.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the requested discovery was "for use" in the French proceeding under § 1782	BonSens argued it could practically use the discovery in the French appellate proceedings, as new evidence is allowed and discovery is relevant to both jurisdiction and merits.	Pfizer argued the discovery was not relevant to the pending French appeal, which was about jurisdiction, and any further merits review was speculative.	Discovery was not "for use" because it was irrelevant to the jurisdictional issue and a merits review was too speculative.
Whether the district court erred by not considering Intel discretionary factors before denying the application	BonSens argued the district court should have addressed the Intel discretionary factors.	Pfizer argued the statutory prerequisites must be met before the court considers discretion, which was not the case here.	No error in declining to address Intel factors; "for use" requirement not met so discretion analysis unnecessary.

Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (statutory and discretionary framework for § 1782 applications)
IJK Palm LLC v. Anholt Servs. USA, Inc., 33 F.4th 669 ("for use" requires more than speculative future use; need objective basis outcome will allow use)
In re Accent Delight Int'l Ltd., 869 F.3d 121 (defining "practical ability" to use discovery in a foreign proceeding)
Mees v. Buiter, 793 F.3d 291 (applicant must show materials are to be used at some stage in foreign proceeding)
Euromepa, S.A. v. R. Esmerian, Inc., 154 F.3d 24 (requirement of procedural mechanism to introduce new evidence in foreign proceeding)
Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76 (even narrow procedural openings for new evidence can satisfy "for use")