Section 1782 of Title 28 of the United States Code permits a federal district court, “upon the application of any interested person,” to order a person within its jurisdiction “to produce a document or other thing for use in a proceeding in a foreign or international tribunal.” Last month, the United States Court of Appeals for the Second Circuit issued an informative decision further interpreting what exactly the “for use” criterion means.

BonSens Requests Discovery of Evidence for a French Lawsuit that is Later Dismissed

The case concerned a discovery request made by BonSens.org, a non-profit association focused on evaluating and presenting health-related issues, during contractual disputes. The dispute originated in the Administrative Court of Paris when BonSens filed a complaint challenging a 2020 purchase agreement between the pharmaceutical company Pfizer and the European Commission. The parties executed the purchase agreement to advance the “development, production, priority-purchasing options and supply of … successful COVID-19 vaccine[s] for EU Member States.” Specifically, BonSens claimed that the purchase agreement contravened French public contract law insofar as it contained an indemnification provision in which each participating Member State agreed to hold Pfizer harmless for certain losses “arising from or relating to the use and deployment of the COVID-19 vaccines.” The French court dismissed the case for lack of jurisdiction, holding that only the Belgian court system had the authority to adjudicate the dispute. BonSens then appealed the dismissal to the Paris Administrative Court of Appeal.

While the appeal in France was pending, BonSens filed a petition in the U.S. District Court for the Southern District of New York under 28 U.S.C. § 1782, seeking disclosure of communications between Pfizer’s chief executive officer and the President of the European Commission that, according to BonSens, were relevant to issues pending in the French proceeding. However, before the district court could rule on this petition, the appeal abroad concluded, and the French court affirmed the dismissal of BonSens’s complaint. Thereafter, the district court denied BonSens’s § 1782 petition as moot. According to the district court, in light of the dismissal of the French proceeding, BonSens “lack[ed] the practical ability to place a beneficial document — or the information it contains — before a foreign tribunal,” such that the requested discovery was no longer properly viewed as “for use” in the French proceeding. The denial was “without prejudice in the event BonSens is ultimately successful in the French appellate courts.”

Second Circuit Rejects Discovery Request, Saying Dismissal Renders the Evidence No Longer “For Use” in the French Case

BonSens appealed the dismissal of the foreign proceeding to France’s highest administrative court, the Conseil d’État. BonSens also appealed the district court’s denial of the § 1782 petition to the Second Circuit. The latter focused on the interpretation of § 1782’s “for use” requirement.

On appeal to the Second Circuit, BonSens asserted that the communications it sought between the purchase agreement’s signatories remained “for use” in the French proceeding because it retained the ability to challenge the dismissal on appeal abroad. BonSens also argued that it remained possible for the proceeding to be reinstated for trial and that, in any event, French law permits BonSens to submit new evidence — including evidence obtained from the § 1782 request — during the appeal process. Consequently, BonSens contended that the requested communications would be “for use” in a foreign proceeding in multiple respects.

However, the Second Circuit was unpersuaded by BonSens’s arguments and affirmed the district court’s ruling. The Second Circuit acknowledged the French courts’ ability to review new evidence on appeal, but it found that the requested discovery was not relevant to the jurisdictional question that was the subject of the French appellate proceedings and instead was only relevant to the merits of the French dispute. The Second Circuit then turned its focus to the likelihood that the French courts would ever hear the dispute on the merits. In its view, the chance that the French jurisdictional ruling would be reversed, allowing the case to be reviewed on the merits, was speculative. For that reason, the court held that the discovery was not “for use” in the French dispute.

Decision Illustrates the Importance of Timing of 28 USC 1782 Discovery Requests

The Second Circuit’s decision indicates that the viability of a § 1782 petition can ebb and flow with the progress of the foreign proceeding for which the evidence is sought. For example, had BonSens filed earlier, and given the district court the opportunity to rule on the petition before either of the lower French courts dismissed the case, the district court may well have granted the discovery request. At that point, there seemingly would have been no dispute that the evidence sought would be for use in a foreign proceeding. At the other end of the timeline, if and when the French jurisdictional dispute is resolved in BonSens’s favor, and the French courts proceed to hear the merits of the underlying dispute, the § 1782 petition likely will become viable once again.

The Second Circuit’s decision also sheds an interesting light on the process by which American courts adjudicating § 1782 petitions evaluate the likelihood that foreign proceedings, conducted under foreign law, will culminate in a certain outcome. Here, in assessing the probability that BonSens’s appeal to France’s highest court ultimately would succeed, the Second Circuit not only reviewed the expert testimony proffered by the parties on the substance of the relevant French jurisdictional issues, but also took into account other features of the French judicial opinions that BonSens was seeking to overturn. Notably on that score, the Second Circuit appeared to ascribe significance to the fact that the French courts had dismissed the proceeding “summarily,” a disposition especially indicative of the absence of compelling arguments for reversal.