Discovery request under 28 U.S.C. §1782 does not require material to be indispensable to bring the foreign action but only that material will be “used” there

On July 17, 2015, the United States Court of Appeals for the Second Circuit clarified that U.S.C. 28 § 1782 requires the applicant to show that discovery seeks material “for use” in a foreign proceeding. It is not necessary for the applicant to show that the proceeding could not be started without the foreign material.

In this case, Mr. Buiter – a native of the Netherlands, who resides in New York and holds dual citizenship in the United Kingdom and the United States – caused Ms. Mees to be arrested and charged in New York State Court with five misdemeanor counts of stalking, menacing, and harassment.

Ms. Mees filed her application pursuant to 28 U.S.C. § 1782, seeking discovery from Buiter “as part of her Dutch attorneys’ investigation of a defamation claim against Buiter” in the Netherlands, “and to prepare for the prosecution of such claim.” She sought discovery of a range of materials that would corroborate her claims of consensual relationship with Mr. Buiter. The application included a declaration of Mees’s Dutch attorney regarding Dutch procedural law to the effect that in Dutch proceedings, plaintiff has a particularly high pleading standard.

Buiter opposed Mees’s application and submitted a competing declaration from his Dutch attorney attesting that those requirements are not particularly high. The District Court agreed with Buiter and rejected Mees’s application explaining that, in order to grant the request for discovery, the “for use” in foreign proceeding means that the material is necessary to start the foreign proceeding. According to the District Court, Mees already possessed enough material to support her allegations, and did not need new evidence to support her foreign claim.

Mees appealed the order, and later served Buiter and his wife with a summons and complaint for a defamation suit filed in the Netherlands.

The Court of Appeals vacated and remanded the District Court decision. It held that the district court erred in two respects.

First, an applicant may satisfy the statute’s “for use” requirement even if the discovery she seeks is not necessary for her to succeed in the foreign proceeding. Second, the discovery need not be sought for the purpose of commencing a foreign proceeding in order to be “for use” in that proceeding. A § 1782 applicant satisfies the statute’s “for use” requirement by showing that the materials she seeks are to be used at some stage of a foreign proceeding, and Mees has made such a showing.

Mees v. Buiter, 07/17/2015, 14-1866 – US Second Circuit is available at…                 Open Pdf


For more information, Francesca Giannoni-Crystal

Follow us on& Like us on