October 5, 2015
That subject line got your attention, didn't it? "Headless Body In Topless Bar" is probably the most famous New York Post headline ever. A recent decision by the United States Court of Appeals for the Second Circuit dealt with a case that also generated headlines in the New York Post. These headlines were not quite as pithy as "Headless Body In Topless Bar," but they certainly got attention: "Stalker Prof an XXX-Pat" and "'Stalker' NYU prof busted for 'kinky come-ons' to top married Citi economy expert after 'intimate relationship' sours."
The case is Mees v. Buiter, no. 14-866 (2d Cir. July 17, 2015), decided in July. In Mees the Second Circuit ruled that a prospective plaintiff in a foreign lawsuit was not statutorily barred from seeking discovery in the United States in support of the lawsuit. This case continues the trend of refusing to erect procedural hurdles that could block a litigant in a foreign country from taking discovery in the United States. The statute that authorizes the discovery is 28 USC § 1782.
Just to recap briefly how § 1782 works: To qualify for § 1782 discovery, the applicant has to meet three statutory prerequisites:
The person from whom the applicant wants discovery is found in the district where the application is made
The discovery is for use in a proceeding in a foreign tribunal
The applicant is an interested person (or the applicant is the foreign tribunal)
If the application complies with those three requirements, the district court has discretion to grant the application. The district court's discretion is supposed to be guided by the four factors that the Supreme Court listed in Intel Corp. v. Advanced Micro Devices, Inc. But the discretionary factors only come into play once the statutory preconditions are met.
In Mees the target of the discovery requests tried to persuade the court to take a very narrow reading of the "for use" requirement. His argument was that the court could permit the discovery only if it was necessary for the foreign lawsuit – meaning that the foreign litigant seeking the discovery has to show he couldn't plead or prove his case without it. It didn't work. In recent years most efforts to block § 1782 discovery have not succeeded, at least at the appeals level. Mees was no exception. (But keep your eyes peeled for my next memo, which discusses a decision from the Second Circuit three weeks ago that denied § 1782 discovery.)
The Court's recital of the facts in Mees is very thin on salacious details – for those you will need to read the New York Post stories – but the short of the matter is that the defendant, Dr. Buiter, had the plaintiff, Ms. Mees, arrested for stalking him. The story was picked up by the local press (with the New York Post bearing the headlines I mentioned earlier), and in the ensuing brouhaha, Mees lost her job teaching economics at NYU and had to go through a criminal proceeding that ended with an adjournment in contemplation of dismissal.
Shortly after that, Mees asked the lower court for § 1782 discovery to help her attorneys in the Netherlands plead and prove a defamation complaint against Buiter. The lower court denied the request on two grounds. First, it ruled that there was no foreign proceeding pending or within reasonable contemplation, so the discovery would not be "for use" in foreign proceeding. The lower court also determined that Mees had not shown that the discovery she wanted was necessary, because she was able to make detailed allegations about Buiter's conduct even without discovery.
The Second Circuit reversed. In reversing, it rejected most of the limitations on § 1782 discovery that Buiter advanced. It rejected any "necessity" rule, because the statute only says that the discovery being sought is "for use" in the foreign proceeding, not that it is "necessary" for the foreign proceeding.
The Second Circuit also rejected Buiter's argument that § 1782 should not apply to pre-suit discovery in private disputes, or should somehow apply differently. When the Supreme Court in Intel held that § 1782 discovery was available for suits "within reasonable contemplation," it made no such qualifications and gave no reason to believe that the statute called for treating pre-suit discovery differently from discovery after the suit was filed.
The upshot is that there was no statutory obstacle to permitting the § 1782 discovery. That left the discretionary factors. By the time the Second Circuit ruled, Mees had already sued in the Netherlands. So the Second Circuit sent the case back to the district court to exercise its discretion about whether to permit the discovery, but it gave the district court some guidance about how it should approach the issue. I won't go into detail here about the Second Circuit's cautions; suffice it to say that the Second Circuit cautioned the district court that there are very few good reasons to deny discovery under § 1782 absent some kind of abuse of the process by the person seeking the discovery.
One really interesting aspect of the Mees decision is the contrast with domestic American litigation. In typical federal litigation, it makes no difference whether a lawsuit is "within reasonable contemplation," because absent unusual circumstances, a litigant is not permitted to take discovery before actually suing. The plaintiff has to have enough facts to state a claim before launching a lawsuit, and courts will usually reject a plea that the plaintiff needs discovery in order to be able to plead his claim. Not so with foreign disputes. Section 1782 is just that broad.
Stuart Riback is a business litigator with nearly 30 years of experience, and is a frequent author of topics germane to the world of litigation. If you have any questions about the Mees case, or would like Stuart to send you a copy, please feel free to contact him by telephone at (212) 981-2326 or by email at firstname.lastname@example.org.
 542 U.S. 241 (2004). Intel listed the four factors as follows:
First, when the person from whom discovery is sought is a participant in the foreign proceeding . . . , the need for § 1782(a) aid generally is not as apparent as it ordinarily is when evidence is sought from a nonparticipant in the matter arising abroad. A foreign tribunal has jurisdiction over those appearing before it, and can itself order them to produce evidence. . .
Second, . . . a court presented with a § 1782(a) request may take into account the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance. . .
Third, a district court could consider whether the § 1782(a) request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States.
Fourth, unduly intrusive or burdensome requests may be rejected or trimmed.
Id. at 264-65.