Commercial Litigation and Arbitration

28 U.S.C. § 1782 Contains No Requirement That the Evidence Sought Be Admissible in the Foreign Proceeding — Good Quote on Abuse of Discretion Standard

Brandi-Dohrn v. IKB Deutsche Insustriebank AG, 673 F.3d 76 (2d Cir. 2012):

Petitioner-Appellant Anselm Brandi-Dohrn appeals from an Order dated November 16, 2011 *** granting Respondent-Appellee IKB Deutsche Industriebank AG's motion to quash subpoenas issued pursuant to 28 U.S.C. § 1782. Under section 1782, a district court is permitted to order a person within its jurisdiction to "give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal." 28 U.S.C. § 1782(a). Brandi-Dohrn sought assistance from the District Court to order discovery from three non-parties for use in a securities fraud action he filed in Germany. On July 27, 2011, the District Court *** allowed the discovery and the relevant subpoenas were issued. However, before any discovery was produced, Respondent-Appellee moved to vacate the July 27, 2011 Order and quash the subpoenas. The District Court granted the motion and ruled that the requested discovery could not be "for use" in the German tribunal because it was unlikely to be admitted in the foreign jurisdiction. We REVERSE the District Court's November 16, 2011 Order because we conclude that the "for use" requirement is not limited to the actual receipt of materials into evidence in the foreign proceeding. Section 1782(a) contains no requirement that particular evidence be admissible in a foreign proceeding to be considered "for use in a proceeding in a foreign or international tribunal."



Brandi-Dohrn is a shareholder of Appellee IKB Deutsche Industriebank AG ("IKB"), a bank located in Germany. In July 2008, Brandi-Dohrn filed an action in Germany against IKB to seek recovery for securities fraud. He alleges that IKB misled him into purchasing its shares by failing to disclose its significant exposure to collateralized debt obligations ("CDOs") backed by United States based subprime mortgages. He also alleges that IKB issued a press release that falsely downplayed the impact that the ratings agencies' downgrading of the CDOs would have on the Bank's operations.

In August 2010, the German trial court (the "Landgericht") dismissed the case and, in November 2010, Brandi-Dohrn appealed the action to the German intermediate appellate court (the "Oberlandesgericht"). The German appellate court was expected to hear the appeal in February 2012.


Brandi-Dohrn filed an ex parte application in the United States District Court for the Southern District of New York to serve subpoenas for documents and depositions of three non-21 parties — IKB Capital Corporation, Lord Securities Corporation, and William O'Brien — for use in the German action. The discovery relates to the issue of whether IKB was aware that its substantial exposure to subprime mortgage-backed CDOs created material risks that should have been disclosed to its investors. Brandi-Dohrn intends to use any relevant material he is able to obtain through this proceeding to convince the Oberlandesgericht to overturn the Landgericht. Brandi-Dohrn's American counsel avers that the discovery will be used in Brandi-Dohrn's pending action, but also acknowledges that Brandi-Dohrn's German counsel plans to use this discovery on behalf of other clients who have similar claims pending against IKB in Germany. ***

On November 16, 2011, the District Court granted IKB's motion to quash the subpoenas. The District Court found troubling that Brandi-Dohrn sought this evidence in November 2011 — more than a year after the German trial court dismissed the case in August 2010.***

Although the District Court did not suspect bad faith, it did suspect that the evidence sought was actually for use in German counsel's other securities fraud cases.***

Furthermore, the District Court found that the evidence would likely not be used in the foreign proceeding because Brandi-Dohrn failed to demonstrate that the Oberlandesgericht would admit the evidence***.

Finally, after looking to German law, the District Court granted IKB's motion to quash the subpoenas:

MR. ROSENBAUM [Counsel for IKB]: [T]his application for 1782 discovery is nothing more than a fishing expedition that is related, that is not sanctioned by the German courts absent a very, very narrow exception that, certainly, doesn't apply here. ***

THE COURT: You are telling me, are you, that if you could have gotten the evidence during the trial and you didn't, you can't bring it up during the appeal?

MR. ROSENBAUM: Correct.***

THE COURT: *** I think following Euromepa S.A. versus R. Esmerian, Inc. 154 F.3d 24 at page 28, the Second Circuit 1998 and In Re: Ishihara Chemical Co. 251 F.3d 120 Second Circuit 2001 in exercising my discretion the for use requirement has not been satisfied and therefore this discovery should not be had. I therefore grant the motion quashing the subpoena. ***




A. Applicable Law

Our review of the District Court's decision is two-fold: (1) as a matter of law, whether the District Court erred in its interpretation of the language of the statute; and (2) if not, whether the District Court's decision to grant discovery on the facts before it was in excess of its discretion. See Euromepa, S.A. v. R. Esmerian, Inc., 154 F.3d 24, 27 (2d Cir. 1998) ("Euromepa II).

"A district court's ruling on a motion to quash a subpoena is reviewable for abuse of discretion." Arista Records, LLC v. Doe 3, 604 F.3d 110, 117 (2d Cir. 2010). "A district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions." Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) (citations, alterations, and internal quotation marks omitted). ***

Our cases acknowledge that a district court may deny the section 1782 application where it suspects that the discovery is being sought for the purposes of harassment. See Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d 1095, 1101 n.6 (2d Cir. 1995) ("Euromepa I") ("[I]f the district court determines that a party's discovery application under section 1782 is made in bad faith, for the purpose of harassment, or unreasonably seeks cumulative or irrelevant materials, the court is free to deny the application in toto, just as it can if discovery was sought in bad faith in domestic litigation."). There are limitations on a district court's discretion, however. "[D]istrict courts must exercise their discretion under § 1782 in light of the twin aims of the statute: 'providing efficient means of assistance to participants in international litigation in our federal courts and encouraging foreign countries by example to provide similar means of assistance to our courts.'" In re Metallgesellschaft, 121 F.3d 77, 79 (2d Cir. 1997) (quoting Malev, 964 F.2d at 100). "We have thus held, for example, that although there is no requirement under § 1782 that the type of discovery sought be available in the relevant foreign jurisdiction, a court may look to the nature, attitude and procedures of that jurisdiction as 'useful tool[s]' to inform its discretion." Schmitz, 376 F.3d at 84 (quoting Metallgesellschaft, 121 F.3d at 79-80).

B. Analysis

Brandi-Dohrn contends that the District Court erred because it misconstrued the "for use" element of section 1782 as requiring him to demonstrate that the discovery he seeks will be admitted in the Oberlandesgericht. We agree and conclude that the District Court "based its ruling on an erroneous view of the law" ... when it held that the "for use" requirement of § 1782 was not satisfied because Brandi-Dohrn had not shown that the discovery he sought was likely to be admitted in the foreign proceeding. The District Court concluded that the evidence could not be "for use" in the Oberlandesgericht because, in its view, it was unlikely that the German court would admit the sought-after evidence.

In Intel Corp. v. Advanced Micro Devices, Inc., the Supreme Court rejected the so-called foreign-discoverability rule and held that § 1782(a) does not "categorically bar a district court from ordering production of documents when the foreign tribunal or the 'interested person' would not be able to obtain the documents if they were located in the foreign jurisdiction." Intel, 542 U.S. at 259-60, 266; see also Gianoli Aldunate, 3 F.3d at 57, 59 ("We . . . hold[ ] that section 1782 does not require the district court to make a finding of discoverability under the laws of the foreign jurisdiction. . . . If Congress had intended to impose such a sweeping restriction on the district court's discretion, at a time when it was enacting liberalizing amendments to the statute, it would have included the statutory language to that effect.").***

The District Court then concluded that the evidence could not be "for use" in the Oberlandesgericht because it would not be admissible there.

While Intel concerned the discoverability of evidence in the foreign proceeding, we see no reason why it should not extend to the admissibility of evidence in the foreign proceeding. As in Intel, there is no statutory basis for any admissibility requirement. "If Congress had intended to impose such a sweeping restriction on the district court's discretion, at a time when it was enacting liberalizing amendments to the statute, it would have included statutory language to that effect." See Intel, 542 U.S. at 260 (internal quotations marks omitted). A foreign admissibility rule would also serve "only to thwart § 1782(a)'s objective to assist foreign tribunals in obtaining relevant information that the tribunals may find useful but, for reasons having no bearing on international comity, they cannot obtain under their own laws." Id. at 262. Furthermore, we need not be concerned with issues of parity because the ultimate admissibility of the evidence is determined by the foreign tribunal. See id. ("Concerns about maintaining parity among adversaries in litigation likewise do not provide a sound basis for a cross-the-board foreign-discoverability rule. . . . [T]he foreign tribunal can place conditions on its acceptance of the information to maintain whatever measure of parity it concludes is appropriate."). Here, the Oberlandesgericht is free to exclude the evidence or place conditions on its admission. Finally, requiring a district court to apply the admissibility laws of the foreign jurisdiction would require interpretation and analysis of foreign law and such "[c]omparisons of that order can be fraught with danger." Id. at 263.

Accordingly, as a district court should not consider the discoverability of the evidence in the foreign proceeding, it should not consider the admissibility of evidence in the foreign proceeding in ruling on a section 1782 application. We join our sister Circuits in coming to this conclusion. See In re Asta Medica, S.A., 981 F.2d 1, 7 n.6 (1st Cir. 1992) ("The district court need not explore whether the information the applicants seek is admissible in the foreign jurisdiction or other issues of foreign law."), abrogated on other grounds by Intel, 542 U.S. 241, 124 S. Ct. 2466, 159 L. Ed. 2d 355; John Deere Ltd. v. Sperry Corp., 754 F.2d 132, 138 (3d Cir. 1985) ("Nor can concern for the ultimate admissibility of the discovered material be argued as a limit on section 1782 orders."); In re Request for Judicial Assistance from the Seoul Dist. Criminal Court, 555 F.2d 720, 723 (9th Cir. 1977) ("[F]ederal courts, in responding to [§ 1782] requests, should not feel obliged to involve themselves in technical questions of foreign law relating to . . . the admissibility before such tribunals of the testimony or material sought.").

Footnote 1. See also Hans Smit, Recent Developments in International Litigation, 35 S. TEX. L. REV. 215, 236 (1994) (noting that it is "both unnecessary and undesirable to let the propriety of discovery with the aid of an American court depend on discoverability and admissibility under foreign law" (emphasis added)); Brian Eric Bomstein & Julie M. Levitt, Comment, Much Ado About 1782: A Look at Recent Problems with Discovery in the United States for Use in Foreign Litigation Under 28 U.S.C. §1782, 20 U. MIAMI INTER-AM. L. REV. 429, 454, 457 (1989) ("Neither the statute nor the legislative history makes reference to the admissibility of evidence as a criterion for granting a request. . . . For policy reasons, the courts are well counseled in refusing to consider the issue of admissibility under foreign law. First, attempts by U.S. courts to construe foreign evidentiary codes and rules results in a gross waste of judicial resources, particularly where even experts on the foreign law in question often disagree on the potential admissibility of the evidence sought. Second, a clear danger to comity and international relations is presented where a court familiar with one system of law attempts to declare the meaning of the laws in another legal system." (footnote omitted)).


IKB contends that, although there is no foreign admissibility requirement, the receptivity of the foreign court to the evidence sought is a relevant consideration when a district court decides how to exercise its discretion. Accordingly, IKB argues that the District Court properly concluded that, since the evidence would likely not be admitted in the proceeding before the German appellate court, it was being sought for purposes of harassment because it would be used in other cases brought by Brandi-Dohrn's German counsel.

We recognize that section 1782(a) gives discretion to the District Court, as it '"authorizes, but does not require, a federal district court to provide judicial assistance to foreign or international tribunals or to "interested person[s]" in proceedings abroad."' See Schmitz, 376 F.3d at 84 (quoting Intel, 542 U.S. at 247) (emphases added by Schmitz). Indeed, we have affirmed denials of section 1782 applications where, although the statutory requirements of section 1782 were met, the twin goals of the statute were not. See Schmitz, 376 F.3d at 81 ("In denying the application, the district court explained that although petitioners had met the statutory requirements of § 1782, [**21] granting discovery in this case would run counter to the statute's aims of assisting foreign courts and litigants and encouraging foreign jurisdictions to provide reciprocal assistance [*84] to American courts. Accordingly, the court exercised its discretion to deny the application. . . . [W]e affirm the judgment of the district court."); Marubeni Am. Corp. v. LBA Y.K., 335 F. App'x 95, 97 (2d Cir. 2009) (summary order) (affirming the District Court's denial of a § 1782 application, where the District Court found the statutory § 1782 requirements were met but that the discretionary factors militated in favor of denial).

Here, however, we must reverse the District Court because it underpinned its conclusion on — and erroneously applied — the statutory "for use" requirement***

Accordingly, ... the District Court exceeded its allowable discretion by "bas[ing] its ruling on an erroneous view" of § 1782's "for use" requirement. See Sims, 534 F.3d at 132.

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