Mees v. Buiter, 793 F.3d 291

Mees filed a 28 U.S.C. § 1782(a) discovery application to obtain materials from Buiter for use in a contemplated Dutch defamation action.
The district court denied the application, holding the materials were not “for use” because they were not necessary to plead a claim in the Dutch proceeding.
Mees contends the materials would be used both to plead and to prove the Dutch claim, and that § 1782 permits use even pre-suit and even if the foreign proceeding is only reasonably contemplated.
Buiter submitted Dutch-law declarations arguing Dutch pleading does not require all evidence at filing and that Mees already had sufficient evidence.
Mees subsequently commenced a defamation suit in the Netherlands after the district court’s decision, and the criminal charges in New York were dismissed.
The panel vacated and remanded, holding that Mees satisfied the “for use” requirement because the materials would be used in a foreign proceeding within reasonable contemplation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the 'for use' requirement can be satisfied pre-suit and without necessity.	Mees satisfies 'for use' if materials aid the foreign proceeding.	Mees must show necessity to plead or that proceeding is imminent.	Yes; 'for use' can be satisfied even pre-suit and without strict necessity.
Whether a contemplated foreign proceeding suffices for 'for use' under Intel.	Contemplated proceedings within reasonable contemplation satisfy 'for use.'	Only actual or pending proceedings should qualify.	Contemplation within reasonable bounds is sufficient.
Whether the district court erred by focusing on Dutch discovery scope and overbreadth.	Limitations should be assessed under Rule 26, not foreign scope.	Discovery requests are burdensome and intrusive given Dutch scope.	District court should tailor narrowly; conclusions about burden must align with Rule 26.
Whether the court should remand rather than decide the merits of § 1782 discretionary factors.	On remand, factors should be reconsidered with Dutch suit underway.	No need to decide; discretion could support denial.	Remand appropriate; discretionary factors to be reconsidered in light of new circumstances.
Whether pre-suit discovery by private litigants is permissible under § 1782.	Private litigants may obtain pre-suit discovery to prepare claims.	No special rule for private litigants; limits apply.	Authorized; Intel framework applies to private litigants as well.

Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (U.S. 2004) (established four discretionary factors for § 1782(a) requests and rejected foreign-discoverability rule)
Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76 (2d Cir. 2012) (set forth discretionary framework and boundaries for § 1782; clarified 'for use' reach.)
Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d 1095 (2d Cir. 1995) (warns against procedural games and supports flexible discovery; discusses purpose of § 1782.)
Schmitz v. Bernstein Liebhard & Lifshitz, LLP, 376 F.3d 79 (2d Cir. 2004) (applies Intel factors to private-party disputes and addresses discovery scope.)
Metallgesellschaft AG v. Hodopp, 121 F.3d 77 (2d Cir. 1997) (discourages rigid foreign-discovery limitations; supports tailoring discovery.)
In re Edelman, 295 F.3d 171 (2d Cir. 2002) (affirms de novo review of district court decisions on § 1782.)
Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 747 F.3d 1262 (11th Cir. 2014) (recognizes 'within reasonable contemplation' for contemplated suits.)