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Practitioners in the Second Circuit should keep an eye on AMD v. Intel, [1] a case before the U.S. Supreme Court this term. At stake is the circuit’s dominant role in the jurisprudence of 28 U.S.C. �1782. This section is designed to assist foreign courts, and the litigants before them, in obtaining discovery in the United States for use in proceedings abroad, which should in turn promote international comity, cooperation, and reciprocity. One of the main concerns in �1782 jurisprudence is what to do when the discovery sought in the United States would not be available in the foreign court. The U.S. Court of Appeals for the Second Circuit, in In re Euromepa S.A. and In re Metallgesellschaft AG, [2] has suggested that although �1782 requests should be looked upon favorably, they should be denied when the foreign court involved demonstrates that it would not accept the obtained discovery. This approach has been generally acknowledged as a sound response to possible tensions between the statutory scheme and foreign courts. [3] The key to this issue is the so-called reciprocal discoverability analysis. The specific question before the Supreme Court [4] is whether �1782 authorizes a private litigant, in a case before a foreign tribunal, to obtain documents here that the foreign tribunal would not order produced and would not accept. In its resolution of this issue, the Court will be heavily influenced by the balanced approach taken by the Second Circuit. The Second Circuit’s approach to international discovery requests has not been uniformly followed, and other circuits have offered competing responses to problems raised by �1782. There are now two circuit splits from the Second Circuit’s jurisprudence. The older split is with the First and Eleventh circuits. Those courts have long interpreted the language of �1782 to impose a reciprocal discoverability requirement � a threshold inquiry as to whether the foreign tribunal before which the matter is pending would itself provide the discovery that is sought under �1782 in the United States. [5] As the Second, Third and Ninth circuits have pointed out, however, there is no explicit statutory basis for a reciprocal discovery requirement. [6] The statute does state that the district court “may order” documents and “may prescribe” procedures as it, in its discretion, sees fit. [7] The reciprocal discoverability analysis is undertaken as a useful tool in the hand of the district court when exercising its discretion on a �1782 request. Therefore, as the Second Circuit explained in Euromepa, a discoverability analysis is merely “one factor that a district judge may consider in the exercise [of] his or her discretion.” A New Circuit Split The solidarity between the Second, Third and Ninth circuits about the statutory language of �1782, however, is not the end of the story. Having rejected a statutorily based reciprocal discoverability requirement, these courts have had to decide what, if anything, should replace it. In �1782 jurisprudence, the question suggests itself fairly quickly, because the policy concerns underpinning the reciprocal discoverability analysis are always present. What happens when a foreign tribunal does not want the discovery sought in the United States? What happens when private litigants attempt to use �1782 to circumvent, rather than facilitate, foreign discovery procedures? As two recent cases demonstrate, the Second Circuit and Ninth Circuit have parted ways and have produced different answers to these questions. The Second Circuit, unlike the Ninth Circuit, has suggested that if there were “authoritative proof that a foreign tribunal would reject that evidence obtained with aid of section 1782,” then the district court, in its discretion, should deny the discovery sought. [8] In the Ninth Circuit, that acknowledgment is absent. In fact, the latter court’s failure to vest the district court with fair discretion has produced such a pro-discovery decision that the Supreme Court has stepped in and may provide a course correction. Similar Cases, Different Results AMD v. Intel arose in the Ninth Circuit from a long-standing contest for European market share between two rivals in the microprocessor industry. AMD complained to the Competition Directorate General of the European Commission (EC) about alleged violations of European competition laws by Intel. In response, the EC launched a preliminary non-adversarial investigation. Under EC law, AMD played a role analogous to that of someone who reports a crime to the police: AMD had no discovery rights and was not allowed access to Intel documents. During the inquiry, AMD asked the commission to order production of 60,000 pages of documents that Intel had produced in previous unrelated third-party litigation in the United States. The EC declined to order the production. Not content to let the matter drop, AMD applied to the U.S. District Court for the Northern District of California under �1782 for an order compelling production of the previously rejected documents. The district court denied AMD’s request, AMD appealed, and the Ninth Circuit reversed. The appellate court’s opinion focused on the lack of statutory support for an explicit reciprocal discoverability requirement, but did not address several other important issues. The court made no mention of the fact that the EC had refused to compel the very discovery AMD sought under �1782 in the district court. Moreover, it failed to note that the statute does explicitly state that the district court “may order” documents and “may prescribe” procedures as it, in its discretion, sees fit. The court justified its approach by stating that “allowance of liberal discovery . . . provide[s] efficient assistance to participants in international litigation and encourage[s] foreign countries by example to provide similar assistance to our courts.” While this proposition is generally sound, the Ninth Circuit did not address the fact that the EC did not want the documents. As a result, the commission has filed an amicus brief urging the Supreme Court to reverse the Ninth Circuit’s decision. [9] Alternate Interpretation The Southern District of New York’s recent interpretation of Second Circuit �1782 jurisprudence in Matter of Schmitz, 259 F.Supp.2d, presents an alternate approach to that of the Ninth Circuit. The facts in Schmitz are analogous to those in AMD v. Intel. Litigants in a series of German lawsuits against Deutsche Telekom AG filed a petition in New York for documents produced here in an otherwise unrelated lawsuit. Just as the EC had done in the Ninth Circuit case, the German court made clear that it did not want the documents in question, and that it believed that compelling production would actively undermine its own judicial procedures. After reviewing the guidance available from the Second Circuit, the district court identified several factors it considered dispositive, namely: “(1) the specific request by German authorities not to provide discovery; (2) the possibility of discovery of the documents at a later juncture by petitioners; (3) the possible affront to German sovereignty; and (4) the potential interference with a German criminal investigation.” On this basis, the Southern District denied the petition. Conclusion The Southern District’s analysis of �1782, and therefore the case’s result, was dramatically different from that of the Ninth Circuit. The court in Schmitz treated the lack of statutory reference to a reciprocal discoverability requirement as merely the beginning � not the culmination � of its analysis. Instead, using Euromepa and Metallgesellschaft as guides, the district court in Schmitz inquired as to whether the foreign court had objections to the particular �1782 discovery sought. This framework allowed the district court to tailor its ruling so as not to offend the foreign tribunal involved. On the other hand, given that the EC’s manifest objections in AMD v. Intel went unheeded, the Ninth Circuit’s jurisprudential framework falls comparatively short. This term, AMD v. Intel presents the Supreme Court with a clear choice as to the proper function of �1782. Second Circuit watchers will be eager to see whether its balanced �1782 jurisprudence is endorsed. Matthew T. McLaughlin is a partner with Heard & O’Toole. William D. McCracken is an associate at the firm. Endnotes: [1] Advanced Micro Devices, Inc. v. Intel Corp., 124 S. Ct. 531 (Nov. 10, 2003) (No. 02-572). [2] In the Matter of the Application of Euromepa, 51 F.3d 1095 (2d Cir. 1995); In re Metallesellschaft, 121 F.3d 77 (2d Cir. 1997). [3] See, e.g., John Fellas, Obtaining Evidence Located in the U.S. for Use in Foreign Litigation, in INTERNATIONAL BUSINESS LITIGATION & ARBITRATION 2003, at 96 (PLI Litig. & Admin. Practice Course, Handbook Series No. 00LD, 2003) (“despite conflicting authority regarding the discoverability requirement, the Second Circuit has been influential with its extensive analysis of �1782″ (quoting In re Duizendstraal, No. 3:95-MC-150-X, 1997 WL 195443, at *2 (N.D. Tex. Apr. 16, 1997)). [4] AMD v. Intel, 124 S. Ct. 531. Two other issues before the Court (whether the respondent is an “interested party” and whether the preliminary investigation of the foreign body constitutes a “tribunal”) are not analyzed in this article. [5] In re Application of Asta Medica, S.A., 981 F.2d 1, 5-7 (1st Cir. 1992); In re Request for Assistance from Ministry of Legal Affairs of Trinidad & Tobago, 848 F.2d 1151, 1156 (11th Cir. 1988), cert. denied, 488 U.S. 1005 (1989). [6] In re Metallgesellschaft, 121 F.3d 77, 79 (2d Cir. 1997); In re Bayer AG, 146 F.3d 188, 191 (3d Cir. 1998); AMD v. Intel, 292 F.3d 664, 668 (9th Cir. 2002). The Fifth Circuit, while not addressing the specific facts evaluated in this article, has acknowledged that courts have “routinely undertaken a discoverability determination when the request for information comes from a private litigant.” In re Letter Rogatory From First Court of First Instance in Civil Matters, Caracas, Venezuela, 42 F.3d 308, 310 (5th Cir. 1995). Likewise, the Fourth Circuit has noted that the reciprocal discoverability requirement should apply to requests from private litigants. In re Letter of Request from the Amtsgericht Ingolstadt, Federal Republic of Germany, 82 F.3d 590, 592 (4th Cir. 1996). [7] 28 U.S.C. �1782(a); see also Bayer AG, 146 F.3d at 194. [8] Metallgesellschaft, 121 F.3d at 80; see also In the Matter of Schmitz, 259 F. Supp. 2d 294 (S.D.N.Y. 2003). [9] Brief of the EC at *4 (No. 02-572) (In its amicus brief before the Supreme Court, the EC explained that it developed a leniency program under which companies are encouraged to voluntarily submit information regarding wrongdoing. The EC urged that by removing any incentive for companies to self-report under the leniency program for fear of U.S. discovery overtures, the Ninth Circuit’s ruling has led to a “a very serious matter [and] a breach of international comity”). The United States Chamber of Commerce and the National Association of Manufacturers also filed amicus briefs urging Supreme Court reversal.

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