220 F. Supp. 3d 517
S.D.N.Y.2016Background
- Kleimar N.V. obtained an ex parte Section 1782 discovery order from Judge Sullivan to aid London arbitrations before the London Maritime Arbitration Association (LMAA) and served a subpoena duces tecum on third‑party Vale S.A.
- Vale moved to vacate the ex parte discovery order and to quash the subpoena, arguing lack of Section 1782 jurisdiction (Vale not found in S.D.N.Y.; LMAA not a "foreign tribunal"), confidentiality, undue burden, and improper service.
- Kleimar opposed, arguing Vale lacked standing to vacate the order, that Vale is "found" in S.D.N.Y. through its U.S. ties (Vale Americas), that the LMAA qualifies as a foreign tribunal, and offering to narrow scope and enter a confidentiality stipulation.
- The Court denied Vale's motion to vacate the ex parte order for lack of standing to challenge discovery directed at other third parties.
- The Court held Kleimar met Section 1782: Vale is "found" in New York (SEC filings, Vale Americas connections), and the LMAA qualifies as a foreign tribunal under Section 1782.
- The Court denied the motion to quash: confidentiality concerns were addressable by a protective order and Kleimar showed willingness to narrow scope; Vale failed to prove undue burden and was properly served via its U.S. agent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to vacate ex parte order | Vale lacks standing to vacate because order affects broader discovery | Vale asserted it could challenge the ex parte order | Vale lacks standing to vacate discovery directed at other third parties; motion to vacate denied |
| Whether Vale "resides or is found" in S.D.N.Y. under §1782 | Vale is found in S.D.N.Y. via Vale Americas, SEC filings, business contacts | Vale argued it is not located in S.D.N.Y. | Court found sufficient New York contacts; §1782 jurisdiction satisfied |
| Whether LMAA arbitration is a "foreign tribunal" under §1782 | LMAA qualifies as a foreign tribunal | Vale argued private arbitration falls outside §1782 | Court followed post‑Intel authority finding LMAA is a foreign tribunal; §1782 applies |
| Quash for confidentiality/undue burden/service | Subpoena seeks confidential commercial info, is burdensome, improperly served | Kleimar offered narrowing/confidentiality stipulation and argued service via Vale Americas was proper | Confidentiality manageable by protective order; Vale failed to show undue burden; service adequate; motion to quash denied |
Key Cases Cited
- Nachamie v. U.S., 91 F. Supp. 2d 552 (S.D.N.Y.) (third‑party standing to quash subpoena requires privilege or proprietary interest)
- Estate of Ungar v. Palestinian Authority, 400 F. Supp. 2d 541 (S.D.N.Y.) (third party may quash subpoena to itself but lacks standing to quash subpoenas directed to other third parties)
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (Sup. Ct.) (factors for Section 1782 discretionary relief)
- Nat’l Broad. Co. v. Bear Stearns & Co., 165 F.3d 184 (2d Cir.) (treatment of private foreign arbitration under Section 1782)
- Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JMC Telecom, 685 F.3d 987 (11th Cir.) (recognizing private commercial tribunals may qualify as foreign tribunals under Section 1782)
- Chevron Corp. v. Berlinger, 629 F.3d 297 (2d Cir.) (declining to decide Section 1782 applicability to private arbitrations)