Case Information
*1 18 ‐ 3226 (L) re del Valle Ruiz
In the
United States Court of Appeals For the Second Circuit August Term, 2018
Argued: March 2019
Decided: October 2019 Docket Nos. ‐ 3226 (L), 18 ‐ 3474 (Con), 18 ‐ 3629 (XAP)
I N R E : A PPLICATION OF A NTONIO D EL V ALLE R UIZ AND OTHERS FOR AN ORDER TO TAKE DISCOVERY FOR USE IN FOREIGN PROCEEDINGS PURSUANT TO U.S.C.
Appeal from United States District Court Southern District New York Nos. ‐ mc ‐ ‐ mc ‐ – Edgardo Ramos, Judge .
Before: P ARKER H ALL D RONEY Circuit Judges .
Banco Santander S.A. (“Santander”) acquired Banco Popular Español, S.A. (“BPE”) after government forced sale. Petitioners, group Mexican nationals two investment asset management firms, initiated sought intervene various foreign proceedings contesting legality acquisition. then filed Southern District New York two applications under U.S.C. seeking Santander New York based affiliate, Investment Securities Inc. (“SIS”), concerning financial status BPE. (Ramos, J. ) denied applications most *2 part, concluding that it lacked personal jurisdiction over Santander. court granted discovery against SIS doing so rejected Santander’s argument that § does allow for extraterritorial discovery. These consolidated appeals follow.
We are first asked delineate contours § 1782’s requirement person entity “resides found” within district sought. We hold language extends § 1782’s reach limits personal consistent with process. We nonetheless conclude Santander’s contacts Southern District New York were insufficient subject district court’s jurisdiction.
We next tasked deciding whether may used reach documents located outside United States. We hold there no per se bar extraterritorial application district may exercise its discretion allow such discovery. conclude acted well within discretion here allowing SIS.
Having so held, affirm court’s orders.
AFFIRMED.
J AVIER H. R UBINSTEIN P.C. (C. Harker Rhodes IV, Kirkland & Ellis LLP, Washington, DC, Lauren F. Friedman, Lucila I.M. Hemmingsen, Joseph Myer Sanderson, Kirkland & Ellis LLP, New York, NY, on brief ), Kirkland & Ellis LLP, Chicago, IL, Petitioners–Appellants Antonio del Valle Ruiz, et al.
D AVID M ADER (Peter Evan Calamari Bento, brief ), Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY, Petitioners–Appellants– Cross Appellees Pacific Investment Management Company LLC Anchorage Capital Group, LLC.
E LBERT L IN (Samuel A. Danon, Hunton Andrews Kurth LLP, Miami, FL, Johnathon E. *3 Schronce, Hunton Andrews Kurth LLP, Richmond, VA, Joseph J. Saltarelli, Hunton Andrews Kurth LLP, New York, NY, brief ), Hunton Andrews Kurth LLP, Richmond, VA, for Respondents–Appellees Banco Santander, S.A., Santander Holdings U.S.A., Inc., and Santander Bank, N.A. and Respondent–Appellee– Cross ‐ Appellant Santander Investment Securities Inc.
H ALL Circuit Judge :
Banco Santander S.A. (“Santander”) acquired Banco Popular Español, S.A. (“BPE”) after government ‐ forced sale. Petitioners, group Mexican nationals two investment asset management firms, initiated sought intervene various foreign proceedings contesting legality acquisition. then filed Southern District New York two applications under U.S.C. seeking Santander New York based affiliate, Investment Securities Inc. (“SIS”), concerning financial status BPE. The (Ramos, J. ) denied applications most part, concluding lacked over Santander. granted against SIS doing so rejected Santander’s argument does allow extraterritorial discovery. These consolidated appeals follow.
We are first asked to delineate the contours § 1782’s requirement that person or entity “resides or found” within the district in which is sought. We hold that language extends § 1782’s reach to the limits personal consistent with process. We nonetheless conclude Santander’s contacts the Southern District New York were insufficient subject district court’s jurisdiction.
We next tasked deciding whether § may used reach documents located outside United States. We hold there no per se bar extraterritorial application district court may exercise its discretion allow such discovery. conclude district acted well within discretion here allowing SIS.
Having so held, affirm district court’s orders.
I.
Section provides “[t]he person resides or found may order him give his testimony or statement or produce document other thing use proceeding foreign or international tribunal.” U.S.C. 1782(a). order may prescribe applicable practice procedure discovery, but “[t]o extent order does prescribe otherwise, testimony statement shall taken, *5 document other thing produced, accordance with Federal Rules of Civil Procedure.” Id.
A.
As of June 2017, BPE was Spain’s sixth ‐ largest bank, assets of approximately €147 billion. After financial crisis of however, BPE became aware it had many toxic and nonperforming assets (“NPAs”) on its books. BPE implemented between and a variety of measures address its exposure NPAs and did so without any government assistance. By end however, business conditions began deteriorate after Spanish governmental entities started making large withdrawals. May BPE, contemplating a private sale, created a virtual data room
for interested buyers. Among those interested was Santander, retained New York ‐ based UBS and Citibank advise on contemplated bid. After completing diligence, purportedly was prepared offer buy BPE €3 billion an additional capital injection €4 billion. Meanwhile, BPE suffered all out run on deposits after reports bankruptcy risk and facing resolution, form government forced sale.
*6 On June 2017, European Central Bank informed European Single Resolution Board that BPE was “failing likely fail.” J. App. 115. That same day, and direction Single Resolution Board, Spain’s national banking supervisory authority (“FROB”) invited several banks, including Santander, submit bids by midnight, ostensibly pursuant a resolution. Only submitted a bid, and bid was one Euro (€1). On June it was publicly announced Santander’s bid had been accepted. Apparently, another potential bidder had complained it did have enough time prepare bid. According news report, Santander’s CEO had stated “Santander able do because had done diligence days earlier. Otherwise, it would been impossible.” J. App. 469.
As result BPE’s resolution, group Mexican investors BPE (the “del Valle Ruiz Petitioners”), well as United States based investment asset management firms Pacific Investment Management Company LLC Anchorage Capital Group, LLC (the “PIMCO Petitioners”), suffered significant financial losses. Both sets petitioners brought legal challenges BPE resolution Court Justice European Union, del Valle Ruiz brought an international arbitration proceeding against Spain, *7 PIMCO Petitioners sought intervene in Spanish criminal proceedings against BPE. Santander has sought, but time of argument had not yet been granted leave, intervene in these proceedings, all of ongoing.
B.
The del Valle Ruiz Petitioners filed a § application in Southern District of New York seeking Santander and its wholly ‐ owned subsidiaries Santander Holdings U.S.A., Inc. (“SHUSA”) and Santander Bank, N.A. (“SBNA”). The del Valle Ruiz Petitioners sought documents relating BPE’s liquidity position, both private sale government sale process, and communications with regulators concerning BPE BPE resolution. PIMCO Petitioners filed § application against Santander, SHUSA, SBNA, SIS, seeking similar documents. Santander protested it not “found” in Southern District within meaning of does apply *8 documents or witnesses located overseas, was otherwise unwarranted. Santander conceded SIS “resides found” the Southern District but contended SIS was involved the acquisition BPE.
C.
The court denied the del Valle Ruiz Petitioners’ application denied part PIMCO Petitioners’ application, but court granted the PIMCO Petitioners’ request for SIS. See generally In re del Valle Ruiz , F. Supp. 3d 448 (S.D.N.Y. 2018). court first concluded whatever statutory meaning “found,” at minimum must comport constitutional process, i.e., court must jurisdiction. Id. at 452–53. Under Daimler AG Bauman (2014), none entities except SIS met requirement for general jurisdiction. In re del Valle Ruiz F. Supp. 3d at 453–57, 459. With respect specific jurisdiction, all Santander’s alleged New York contacts took place after resolution had been adopted, litigation abroad therefore could said arise out relate those contacts. Id. 453–59.
*9 The district court concluded that SIS “resides or is found” in Southern District New York, court thus had discretion grant discovery against SIS, discovery was warranted under Intel Corp. Advanced Micro Devices, Inc. , 542 (2004). In re del Valle Ruiz F. Supp. 3d at 459–60. In doing so, court noted was not party any foreign proceedings and, although it had been ordered produce some in Spanish criminal proceeding, not “an especially active participant” proceeding. Id. at The court rejected Santander’s extraterritoriality argument, concluding producing documents located abroad would unduly burdensome or intrusive. Id. at 459–60 (citing re Accent Delight Int’l Ltd. Nos. mc ‐ 125, ‐ mc ‐ WL *4 (S.D.N.Y. June 2018), appeal docketed No. 1755). The district did mention SIS specifically Intel analysis. These consolidated appeals follow.
II.
These appeals present several issues first impression. parties dispute proper interpretation 1782’s requirement respondent “resides is found” ordering sits. insist 1782’s use word “found” coextensive *10 limits of personal jurisdiction consistent with due process (and less process due for nonparties), whereas Santander argues must restrict 1782’s “found” language general “tag” jurisdiction over individuals. [7] also contends 1782 does reach evidence located abroad and district abused discretion by allowing against SIS, both points naturally disagree. [8] We address these arguments in turn.
III.
“We review de novo district court’s ruling a petition satisfies Section 1782’s jurisdictional requirements.” Kiobel by Samkalden v. Cravath, Swaine & Moore LLP , 895 F.3d 238, 243 (2d Cir. 2018). likewise review de novo court’s personal jurisdiction ruling, “construing all pleadings and affidavits light most favorable [party asserting jurisdiction] resolving all doubts [that party’s] favor.” See SPV Osus Ltd. v. UBS AG , 882 F.3d 342 (2d Cir. 2018). *11 Section does define “found.” Neither did the district court. It instead concluded even if “found” extended to the limits personal jurisdiction consistent with due process, failed demonstrate Santander subject either court’s general specific personal jurisdiction. This where we begin.
A. urges us essentially cabin “found” facts In re Edelman F.3d (2d Cir. 2002). Effectively, this would limit § 1782’s reach
individuals entities over district general personal jurisdiction. This approach admittedly would result tidy, easily applicable rule. We nonetheless decline invitation instead conclude statutory scope “found” extends limits consistent process.
In In re Edelman Court’s only case address “found” requirement addressed requirement’s application individual. respondent there focused statutory language—“ found,” U.S.C. 1782(a) (emphasis added)—to argue “that deponent must residing be found contemporaneously district court’s issuance order,” re Edelman 177–78, whereas petitioner asserted deponent need only found when served, id. *12 reasoned that “another part of § 1782(a) supports flexible reading of phrase ‘resides is found,’” specifically, protections afforded by Rules and of Federal Rules Civil Procedure well as court’s “prudent exercise discretion.” Id. at 178–79. further noted that “the question what means be found in
particular locale already subject well settled case law on territorial jurisdiction,” i.e., tag jurisdiction. Id. (citing Burnham Superior Ct. Cal. (1990) (plurality opinion)). “Given that so called tag jurisdiction consistent with due process,” we reasoned, “we do not think that § 1782(a), simply mechanism does subject person liability, requires more.” Id. Given this, legislative history expressing Congress’s “aim statute interpreted broadly courts exercise discretion in deciding whether, what manner, order in particular cases,” we concluded tag jurisdiction was sufficient satisfy § 1782’s “found” requirement. Id. 179–80. But did conclude tag jurisdiction necessary satisfy § Indeed, our focus tag comporting process no way suggests § 1782’s reach should coextensive only limits court’s general jurisdiction. nonetheless finds some support position re Edelman ’s analysis 1782’s legislative history. As originally enacted *13 provided “[t]he deposition any witness residing within United States,” so long as deposition was “taken before person authorized administer oaths designated by any district where witness resides or may found.” Act June 25, 1948, Pub. L. No. 80 ‐ 773, 1782, 62 Stat. 869, 949. next year, Congress struck first “residing,” but left latter “reside[]” “be found” requirement. Act May 24, 1949, Pub. L. No. 81 72, 93, 63 Stat. 89, As noted, “the change intended ‘correct[] restrictive language in section . . . permit [] depositions in any judicial proceeding without regard deponent is “residing” in only sojourning there .’” re Edelman F.3d at 179–80 (alterations original) (quoting H.R. Rep. No. (1949), reprinted U.S.C.C.A.N. 1270). further noted “a sojourn temporary stay (as traveler foreign country).” Id. (internal quotation marks omitted). Santander hangs its hat on focus on individual’s physical presence justify its preference restrict “found” general tag jurisdiction. alone: Hans Smit, “a leading academic commentator on
statute who played role drafting,” Certain Funds, Accounts and/or Inv. Vehicles KPMG, L.L.P. (2d Cir. 2015), stated term “found” “[t]he evident statutory purpose create adjudicatory authority based presence. Insofar term applies legal rather than natural persons, may safely regarded referring judicial precedents equate systematic and continuous local activities,” i.e., general jurisdiction, “with presence.” Hans Smit, American Assistance Litigation in Foreign and International Tribunals: Section Title 28 U.S.C. Revisited , 25 S YRACUSE J. I NT ’ L L. & C OM . 1, 10 (1998) (footnote omitted).
We convinced. Courts have consistently given broad interpretations similar “found” language in other statutes. See, e.g. , Waeltz v. Delta Pilots Ret. Plan F.3d (7th Cir. 2002); Varsic v. Dist. Ct. , F.2d 245, 248–49 (9th Cir. 1979); see also Appellant Br. at 27–32. see no reason replace “flexible reading phrase ‘resides found’” we considered appropriate in re Edelman F.3d cramped reading suggests. Indeed, repeatedly recognized Congress’s intent “interpreted broadly,” especially given court’s ability “to exercise discretion deciding whether, in what manner, order in particular cases.” id. 180; see also Brandi Dohrn IKB Deutsche Industriebank AG (2d Cir. 2012) (noting that, pursuit statute’s “twin goals” providing “equitable efficacious procedures United States courts benefit tribunals litigants involved litigation international aspects” encouraging “foreign countries by example provide similar means assistance our courts,” “the statute has, over years, been *15 given increasingly broad applicability” (internal quotation marks omitted)). hold, accordingly, 1782’s “resides or found” language extends limits personal jurisdiction consistent with due process.
Having so concluded, we turn next whether Santander’s contacts Southern District were sufficient subject court’s specific jurisdiction.
B.
“The inquiry forum State may assert specific jurisdiction over nonresident defendant focuses on relationship among defendant, forum, litigation.” Walden v. Fiore U.S. 283–84 (2014) (internal quotation marks omitted). “[T]he touchstone process principle been that, before may exercise jurisdiction over person organization, such bank, person entity must sufficient ‘minimum contacts’ forum ‘such maintenance suit does not offend traditional notions fair play substantial justice.’” Gucci Am., Inc. v. Weixing Li (2d Cir. 2014) (quoting Int’l Shoe Co. Washington (1945)). *16 For specific jurisdiction, “there must an ‘affiliation between the forum and the underlying controversy, principally, [an] activity or occurrence takes place the forum State.’” Bristol Myers Squibb Co. v. Superior Ct. Cal. , 137 S. Ct. 1773, 1780 (2017) (alteration original) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown , 564 U.S. 919 (2011)). Put differently, “[s]pecific jurisdiction . . . permits adjudicatory authority only over issues ‘aris[e] out or relat[e] the [entity’s] contacts with the forum.’” Gucci Am. , F.3d at (some alterations original) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall , U.S. n.8 (1984)).
In principle, two step analysis well established: First, the must decide if individual entity has “purposefully directed his activities at . . . forum and litigation . . . arise[s] out relate[s] those activities.” Burger King Corp. Rudzewicz (1985) (internal quotation marks citation omitted). Second, must “determine whether assertion jurisdiction would comport fair play substantial justice.” Id. at (internal quotation marks omitted). But “[t]he Supreme Court . . . addressed specific jurisdiction over nonparties.” Gucci Am. Gucci America suggested following framework nonparties: (1) “first assess connection between nonparty’s contacts forum order issue” (2) “then decide exercising *17 purposes the order would comport fair play and substantial justice.” Gucci Am. F.3d at We further noted that at least one circuit had likewise applied “translated” version the specific test requests “by focusing on connection between nonparty’s contacts forum order issue.” Id. (citing Application Enforce Admin. Subpoenas Duces Tecum SEC Knowles (10th Cir. 1996)). This provides starting point, but several issues somewhat muddy analysis.
Petitioners ask that we add clarity two unresolved issues specific personal jurisdiction. Petitioners first request address exactly what process is due entity such as Santander, which is subject potential liability. They insist less process process received thus sufficient. Petitioners next seek guidance what contacts necessary give rise specific jurisdiction. That is, what exactly do “arising out of” “related to” mean context? insist “related to” encompasses much broader swath conduct than “arising out of,” includes conduct such Santander’s forum contacts here.
1.
Petitioners first urge us to conclude that process due nonparties less than that due defendants, though Petitioners fail to define what that “less” might mean. [11] True, we have recognized a “person who subjected to liability . . . far from home may have better cause to complain outrage to fair play” than a nonparty. First Am. Corp. v. Price Waterhouse LLP , F.3d 20 (2d Cir. 1998). But we also observed nonparty may have interests, such avoiding burdens discovery, “genuinely independent” any intent to frustrate order. See Heyman Kline F.2d 65–66 (2d Cir. 1971); see also Gucci Am. n.17 (recognizing these views). decline hold there categorically lower showing due process needed obtain nonparty. Instead, think enough purposes process these circumstances nonparty’s contacts forum go actual sought rather than underlying cause action. next ask us divine difference between “arising out of” “related to,” difference Supreme Court yet concede, much less construe. Helicopteros Nacionales n.10 (declining reach *19 issues). But regardless what, if any, conceptual distance separates “arising out of” and “related to,” we always required some causal relationship between an entity’s ‐ forum contacts the proceeding at issue. SPV Osus , 882 F.3d at (observing that courts differ on proximate but ‐ for causation sufficient for specific jurisdiction but noting “the standard applied [in Circuit] depends on ‘the relationship among the defendant, the forum, the litigation.’” (quoting Chew v. Dietrich F.3d (2d Cir. 1998))). the liability context, “[t]he exercise specific jurisdiction depends ‐ state activity gave rise episode ‐ suit .” Waldman Palestine Liberation Org. (2d Cir. 2016) (internal quotation marks omitted); see also Bristol Myers Squibb S. Ct. (holding unrelated contacts cannot diminish required showing affiliation between forum underlying controversy). Translated account respondent’s nonparty status, thus hold that, where material sought proximately resulted respondent’s forum contacts, would sufficient establish specific ordering discovery. That is, respondent’s having purposefully availed itself forum must primary proximate reason evidence sought available all. On other hand, where respondent’s contacts broader more significant, petitioner *20 need demonstrate only that the evidence sought would not available but for the respondent’s forum contacts.
3.
That settled, we turn to the case hand. The concluded that Santander’s related forum contacts all postdated the acquisition of BPE could therefore not even but for “causes” the availability the evidence sought discovery. With one exception, we agree. That exception is Santander’s use two New York City firms, UBS Citibank, to conduct due diligence on BPE for a private sale that fell through before BPE was forced into resolution. According to Santander’s CEO, but for having conducted that diligence, “it would have been impossible” for submit its resolution bid time. J. App. 469. But this is Santander’s only forum contact was connected the discovery sought. were therefore required show contact was proximate reason evidence sought available, merely evidence would not been available but contact. This they failed do. only conduct Petitioners claim a cause their discovery request described their affidavit as follow: “According media reports, apparently able complete full diligence BPE approximately days before Resolution . . . had retained UBS another New York based investment banking financial services company advisors contemplated bid.” J. App. This forum conduct relates only BPE’s preresolution effort seek buyer. But Petitioners’ claim here (and likewise bulk discovery sought) arises from separate financial transaction: forced sale BPE. SPV Osus 344–45. We thus conclude district court properly held it lacked personal jurisdiction over Santander. district court did conclude, however, had general over SIS, conclusion not challenged on appeal. We thus turn next
whether § allows SIS evidence located abroad. That is, does apply extraterritorially?
IV.
Santander, on behalf SIS, insists erred by applying per se bar against under evidence located abroad, *22 relying presumption against extraterritoriality. “Because reach applicability statute questions statutory interpretation, review lower court’s application presumption against extraterritoriality,” as here, failure do so, “ de novo .” See In re Picard , F.3d (2d Cir. 2019).
The “canon statutory construction known presumption against extraterritoriality” states “[a]bsent clearly expressed congressional intent contrary, federal laws will construed only domestic application.” RJR Nabisco, Inc. v. European Cmty. S. Ct. (2016). The presumption both “serves avoid international discord can result when U.S. law applied conduct foreign countries” also “reflects more prosaic commonsense notion Congress generally legislates domestic concerns mind.” Id. (internal quotation marks omitted). agree this presumption has no role play here. presumption against extraterritoriality “typically appl[ied] discern
whether Act Congress regulating conduct applies abroad.” Kiobel Royal Dutch Petroleum Co. (2013). But “is simply mechanism does subject person liability.” re Edelman To sure, Supreme Court has stated dicta “we must ask question,” i.e., whether presumption against extraterritoriality been rebutted, “regardless statute question regulates conduct, affords *23 relief, or merely confers jurisdiction.” RJR Nabisco , 136 S. Ct. at 2101. But the Court’s reference to conferring concerned the statute at issue Kiobel , where Court noted that the statute did “not directly regulate conduct or afford relief” but nonetheless “allow[ed] federal courts to recognize certain causes of action” thus subject to same “principles underlying canon of interpretation.” Kiobel , 569 U.S. at 116; see also RJR Nabisco , 136 S. Ct. at 2100– Supreme Court has never applied presumption against extraterritoriality to “strictly jurisdictional” statute, see Kiobel , 569 U.S. at 116, otherwise tethered to regulating conduct providing cause action, see R ESTATEMENT (F OURTH ) OF F OREIGN R ELATIONS L AW § 404 cmt. & n.3 (2018). see no reason to do so here. [14]
*24 Still, lower courts in this Circuit have split on whether § 1782 can be used to reach documents stored overseas, [15] and we have yet to address the issue. [16] See In re Accent Delight Int’l Ltd. , 696 F. App’x 537, 539 (2d Cir. 2017) (summary order). In Sergeeva v. Tripleton Int’l Ltd. , 834 F.3d 1194 (11th Cir. 2016), the Eleventh Circuit became the first circuit so far to address § 1782 applies *25 extraterritorially. The Eleventh Circuit reasoned text § authorizes discovery pursuant Federal Rules Civil Procedure. The Federal Rules Civil Procedure in turn authorize extraterritorial discovery so long documents produced within subpoenaed party’s possession, custody, control. Hence § likewise allows extraterritorial discovery. id. 1199– 1200. Eleventh Circuit concluded, then, “the location responsive
documents electronically stored information—to extent a physical location can discerned this digital age—does establish per se bar discovery under 1782.” Id. find reasoning persuasive. Our previous dicta notwithstanding, we join Eleventh Circuit holding court categorically barred allowing under evidence located abroad. That said, note may properly, fact should, consider location documents other evidence when deciding exercise its discretion authorize such discovery. Cf. Mees Buiter (2d Cir. 2015) (“[W]e have instructed it far preferable reconcile whatever misgivings may about impact participation foreign litigation by issuing closely tailored order rather than by simply denying relief outright.” (internal quotation marks omitted)).
Having so decided, turn finally Santander’s argument the district court abused discretion by granting against SIS.
V.
Once a district court concluded it has jurisdiction, “[w]e review the decision grant Section petition an abuse of discretion.” Kiobel by Samkalden 244.
“To guide courts in the decision grant Section petition, the Supreme Court in Intel discussed non exclusive factors (the ‘ Intel factors’) considered light ‘twin aims’ section . . . .” Id. “The Intel factors are applied mechanically,” “[a] court should also take into account any other pertinent issues arising from facts particular dispute.” Id. Those factors (1) “the person from whom is sought is participant foreign proceeding,“ event “the need 1782(a) aid generally apparent as ordinarily when evidence sought nonparticipant matter arising abroad”; (2) “the nature foreign tribunal, character proceedings underway abroad, receptivity foreign government or agency abroad federal ‐ assistance”; (3) “whether 1782(a) request conceals attempt circumvent foreign proof gathering restrictions other policies foreign *27 country or the United States”; (4) the request is “unduly intrusive or burdensome.” Intel 264–65.
Santander primarily protests that district failed to analyze any factors respect to SIS. stated it considered Intel factors SIS found “that against SIS is appropriate” but failed identify SIS in its subsequent analysis. re del Valle Ruiz F. Supp. 3d Nonetheless, factors plainly weighed favor against SIS. First, SIS party any foreign proceedings. Second, there is no evidence foreign proceedings would unreceptive evidence. Third, no argument has been made attempting procure documents SIS contravention restrictions place foreign proceedings. And fourth, neither nor SIS made any showing production any responsive documents would unduly intrusive burdensome.
CONCLUSION
For foregoing reasons, hold (1) 1782’s “resides found” language extends reach limits personal jurisdiction consistent process, but Santander’s forum contacts were nonetheless insufficient subject court’s (2) there no per se bar under extraterritorial discovery, acted within discretion when permitting SIS. AFFIRM orders court.
[1] generally Regulation 806/2014, European Parliament Council July Establishing Uniform Rules Uniform Procedure Resolution Credit Institutions Single Resolution Fund Amending Regulation (EU) No 1093/2010, O.J. (L 225) (discussing resolution process).
[2] Yes, really: One Euro. J. App. (letter FROB stating bids purchase all BPE shares “must exact figure Euros range must equal greater than one Euro (€1)”); see also J. App.
[3] After briefing argument, Santander informed this Court been allowed intervene in European Union proceedings. Appellees’ Fed. R. App. P. 28(j) Letter. Given our discussion below, development does affect outcome these appeals.
[4] Santander is Spanish banking company with its principal place business Madrid, Spain. SHUSA Virginia corporation with its principal place business Boston, Massachusetts. SBNA national banking association its principal place business Boston, Massachusetts. SIS Delaware corporation principal place business New York, New York. make no arguments on appeal concerning SHUSA SBNA. Nor do they argue either these entities should somehow treated agents Santander. Accordingly, focus only SIS.
[5] Although specifically mentioned retention investment banks, specifically noted those banks were retained “prior sale [BPE], explore financing options acquisition,” failed provide any rationale why contact insufficient. re del Valle Ruiz F. Supp. 3d
[6] Both parties appear assume “resides” properly understood refer where individual entity “essentially home” purposes general jurisdiction.
[7] Tag refers court’s exercise of personal jurisdiction over an individual who served, thus “tagged,” while physically present forum. re Edelman F.3d (2d Cir. 2002) (citing Burnham v. Superior Ct. Cal. (1990) (plurality opinion)); see also Kadic Karadzic (2d Cir. 1995) (“Fed. R. Civ. P. 4(e)(2) specifically authorizes personal service summons complaint upon an individual physically present within judicial United States, such personal service comports requirements process assertion jurisdiction.”).
[8] Institute International Bankers moved leave file amicus curiae brief support Santander. That motion been granted.
[9] Although insist “there good reason believe had general over purposes,” they do press argument appeal, see Appellant Br. 36–37, do consider it.
[10] note context application, relevant “forum” limited district which district sits. U.S.C. 1782(a) (referring “[t]he person resides found”).
[11] Although SIS are technically “parties” proceeding, they functionally nonparties sense they are subject liability underlying foreign proceedings.
[12] realize use terminology relating causation a somewhat awkward fit discovery. Nonetheless, think focus relationship between respondent’s forum contacts resulting availability evidence workable translation normal ‐ framework. For instance, applicant could target all documents relating x created during course respondent’s engagement forum entity y . That our holding will generally require applicant provide additional specificity concerning seeks feature, flaw. Cf. Smit, supra
[13] need speculate result would different had Petitioners sought, instance, only documents produced by New York firms, rather than documents concerning BPE more generally, because pressed no such argument either appeal.
[14] Even if we were conclude that presumption against extraterritoriality applicable § 1782, we would nonetheless conclude Congress’s incorporation Federal Rules Civil Procedure, had by then been interpreted allow extraterritorial discovery, see, e.g. Societe Internationale Pour Participations Industrielles Et Commerciales, S.A. Rogers 197, 199– 200, 204–06 (1958) (applying “possession, custody, control” test documents held abroad); see also Act Oct. Pub. L. No. 619, 9(a), Stat. (amending incorporate Federal Rules Civil Procedure), sufficient overcome presumption, see RJR Nabisco S. Ct. (“At first step, ask whether presumption against extraterritoriality been rebutted—that is, statute gives clear, affirmative indication applies extraterritorially.”); cf. id. 2102–03 (holding incorporation extraterritorial predicates sufficed give indication statute applied some foreign activity noting “an express statement extraterritoriality essential”).
[15] Compare, e.g. , Purolite Corp. v. Hitachi Am., Ltd. , No. 17 ‐ mc ‐ 67, 2017 WL 1906905, at *2 (S.D.N.Y. May 9, 2017) (no extraterritorial application); In re Application of Kreke Immobilien KG , No. 13 ‐ mc ‐ 110, 2013 WL 5966916, at *4 (S.D.N.Y. Nov. 8, 2013) (same); In re Godfrey , 526 F.Supp.2d 417, 423 (S.D.N.Y. 2007) (same); In re Microsoft Corp. , 428 F. Supp. 2d 188, 194 n.5 (S.D.N.Y. 2006) (same); In re Accent Delight Int’l Ltd. , Nos. 16 ‐ mc ‐ 125, 18 ‐ mc ‐ 50, 2018 WL 2849724, at *4 (S.D.N.Y. June 11, 2018) (extraterritorial application); In re Application of Eli Lilly & Co. , No. 09 ‐ mc ‐ 296, 2010 WL 2509133, at *4 (D. Conn. June 15, 2010) (same); re Application of Gemeinshcaftspraxis Dr. Med. Schottdorf , No. M19 88, 2006 WL 3844464, *5 (S.D.N.Y. Dec. 29, 2006) (same).
[16] Most courts concluded § 1782 does apply extraterritorially rely dicta from this Court, contemporaneous Senate report, and 1998 article by one 1782’s principal drafters. Application Sarrio, S.A. , 119 F.3d 147 (2d Cir. 1997) (“On its face, 1782 does limit its power to documents located the United States. . . . [But] despite the statute’s unrestrictive language, there reason think Congress intended reach only evidence located within the United States.”); S. Rep. No. (1964), reprinted U.S.C.C.A.N. (“in obtaining oral documentary evidence United States ” (emphasis added)); Smit, supra (“[I]f Section could used purpose, American courts would become clearing houses for requests information courts litigants all over world search evidence obtained all over world.”). But given plain meaning statute, we adopt below, these considerations insufficient win day. See, e.g. Green City New York (2d Cir. 2006) (“Statutory analysis begins text plain meaning, if one. Only if attempt discern plain meaning fails because statute ambiguous, do we resort canons construction. If both plain language canons construction fail resolve ambiguity, turn legislative history.” (citations omitted)).