18‐3226 (L) In re del Valle Ruiz
In the United States Court of Appeals For the Second Circuit
August Term, 2018
Argued: March 25, 2019 Decided: October 7, 2019
Docket Nos. 18‐3226 (L), 18‐3474 (Con), 18‐3629 (XAP)
IN RE: APPLICATION OF ANTONIO DEL VALLE RUIZ AND OTHERS FOR AN ORDER TO TAKE DISCOVERY FOR USE IN FOREIGN PROCEEDINGS PURSUANT TO 28 U.S.C. § 1782
Appeal from the United States District Court for the Southern District of New York Nos. 18‐mc‐85, 18‐mc‐127 – Edgardo Ramos, Judge.
Before: PARKER, HALL, and DRONEY, Circuit Judges.
Banco Santander S.A. (“Santander”) acquired Banco Popular Español, S.A. (“BPE”) after a government‐forced sale. Petitioners, a group of Mexican nationals and two investment and asset management firms, initiated or sought to intervene in various foreign proceedings contesting the legality of the acquisition. Petitioners then filed in the Southern District of New York two applications under 28 U.S.C. § 1782 seeking discovery from Santander and its New York‐based affiliate, Santander Investment Securities Inc. (“SIS”), concerning the financial status of BPE. The district court (Ramos, J.) denied the applications for the most part, concluding that it lacked personal jurisdiction over Santander. The court granted discovery against SIS and in doing so rejected Santander’s argument that § 1782 does not allow for extraterritorial discovery. These consolidated appeals follow.
We are first asked to delineate the contours of § 1782’s requirement that a person or entity “resides or is found” within the district in which discovery is sought. We hold that this language extends § 1782’s reach to the limits of personal jurisdiction consistent with due process. We nonetheless conclude that Santander’s contacts with the Southern District of New York were insufficient to subject it to the district court’s personal jurisdiction.
We are next tasked with deciding whether § 1782 may be used to reach documents located outside of the United States. We hold that there is no per se bar to the extraterritorial application of § 1782, and the district court may exercise its discretion as to whether to allow such discovery. We conclude that the district court acted well within its discretion here in allowing discovery from SIS.
Having so held, we affirm the district court’s orders.
AFFIRMED.
JAVIER H. RUBINSTEIN, P.C. (C. Harker Rhodes IV, Kirkland & Ellis LLP, Washington, DC, Lauren F. Friedman, Lucila I.M. Hemmingsen, Joseph Myer Sanderson, Kirkland & Ellis LLP, New York, NY, on the brief), Kirkland & Ellis LLP, Chicago, IL, for Petitioners–Appellants Antonio del Valle Ruiz, et al.
DAVID MADER (Peter Evan Calamari Bento, on the brief), Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY, for Petitioners–Appellants– Cross‐Appellees Pacific Investment Management Company LLC and Anchorage Capital Group, LLC.
ELBERT LIN (Samuel A. Danon, Hunton Andrews Kurth LLP, Miami, FL, Johnathon E. 2 Schronce, Hunton Andrews Kurth LLP, Richmond, VA, Joseph J. Saltarelli, Hunton Andrews Kurth LLP, New York, NY, on the brief), Hunton Andrews Kurth LLP, Richmond, VA, for Respondents–Appellees Banco Santander, S.A., Santander Holdings U.S.A., Inc., and Santander Bank, N.A. and Respondent–Appellee– Cross‐Appellant Santander Investment Securities Inc.
HALL, Circuit Judge:
Banco Santander S.A. (“Santander”) acquired Banco Popular Español, S.A.
(“BPE”) after a government‐forced sale. Petitioners, a group of Mexican nationals
and two investment and asset‐management firms, initiated or sought to intervene
in various foreign proceedings contesting the legality of the acquisition.
Petitioners then filed in the Southern District of New York two applications under
28 U.S.C. § 1782 seeking discovery from Santander and its New York‐based
affiliate, Santander Investment Securities Inc. (“SIS”), concerning the financial
status of BPE. The district court (Ramos, J.) denied the applications for the most
part, concluding that it lacked personal jurisdiction over Santander. The court
granted discovery against SIS and in doing so rejected Santander’s argument that
§ 1782 does not allow for extraterritorial discovery. These consolidated appeals
follow.
3 We are first asked to delineate the contours of § 1782’s requirement that a
person or entity “resides or is found” within the district in which discovery is
sought. We hold that this language extends § 1782’s reach to the limits of personal
jurisdiction consistent with due process. We nonetheless conclude that
Santander’s contacts with the Southern District of New York were insufficient to
subject it to the district court’s personal jurisdiction.
We are next tasked with deciding whether § 1782 may be used to reach
documents located outside of the United States. We hold that there is no per se
bar to the extraterritorial application of § 1782, and the district court may exercise
its discretion as to whether to allow such discovery. We conclude that the district
court acted well within its discretion here in allowing discovery from SIS.
I.
Section 1782 provides that “[t]he district court of the district in which a
person resides or is found may order him 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). The order may prescribe the
applicable practice and procedure for discovery, but “[t]o the extent that the order
does not prescribe otherwise, the testimony or statement shall be taken, and the
4 document or other thing produced, in accordance with the Federal Rules of Civil
Procedure.” Id.
A.
As of June 2017, BPE was Spain’s sixth‐largest bank, with assets of
approximately €147 billion. After the financial crisis of 2008, however, BPE
became aware that it had many toxic and nonperforming assets (“NPAs”) on its
books. BPE implemented between 2012 and 2016 a variety of measures to address
its exposure to NPAs and did so without any government assistance. By the end
of 2016, however, business conditions began to deteriorate after Spanish
governmental entities started making large withdrawals.
In May 2017, BPE, contemplating a private sale, created a virtual data room
for interested buyers. Among those interested was Santander, which retained
New York‐based UBS and Citibank to advise on a contemplated bid. After
completing its due diligence, Santander purportedly was prepared to offer to buy
BPE for €3 billion with an additional capital injection of €4 billion. Meanwhile,
BPE suffered an all‐out run on deposits after reports that it was a bankruptcy risk
and facing resolution, a form of government‐forced sale.1
1See generally Regulation 806/2014, of the European Parliament and of the Council of 15 July 2014 on Establishing Uniform Rules and a Uniform Procedure for the Resolution of Credit Institutions and a Single Resolution Fund and Amending Regulation (EU) No 1093/2010, 2014 O.J. (L 225) 1 (discussing the resolution process). 5 On June 6, 2017, the European Central Bank informed the European Single
Resolution Board that BPE was “failing or likely to fail.” J. App. 115. That same
day, and at the direction of the Single Resolution Board, Spain’s national banking
supervisory authority (“FROB”) invited several banks, including Santander, to
submit bids by midnight, ostensibly pursuant to a resolution. Only Santander
submitted a bid, and that bid was for one Euro (€1).2 On June 7, 2017, it was
publicly announced that Santander’s bid had been accepted. Apparently, another
potential bidder had complained that it did not have enough time to prepare a bid.
According to a news report, Santander’s CEO had stated that “Santander was able
to do it because we had done due diligence 20 days earlier. Otherwise, it would
have been impossible.” J. App. 469.
As a result of BPE’s resolution, a group of 55 Mexican investors in BPE (the
“del Valle Ruiz Petitioners”), as well as United States‐based investment and asset
management firms Pacific Investment Management Company LLC and
Anchorage Capital Group, LLC (the “PIMCO Petitioners”), suffered significant
financial losses. Both sets of petitioners brought legal challenges to the BPE
resolution in the Court of Justice of the European Union, the del Valle Ruiz
Petitioners brought an international arbitration proceeding against Spain, and the
2Yes, really: One Euro. See J. App. 685 (letter from FROB stating that bids for the purchase of all BPE shares “must be an exact figure in Euros not a range and must be equal to or greater than one Euro (€1)”); see also J. App. 694. 6 PIMCO Petitioners sought to intervene in Spanish criminal proceedings against
BPE. Santander has sought, but at the time of argument had not yet been granted
leave, to intervene in these proceedings, all of which are ongoing.3
B.
The del Valle Ruiz Petitioners filed a § 1782 application in the Southern
District of New York seeking discovery from Santander and its wholly‐owned
subsidiaries Santander Holdings U.S.A., Inc. (“SHUSA”) and Santander Bank,
N.A. (“SBNA”). The del Valle Ruiz Petitioners sought documents relating to BPE’s
liquidity position, both the private‐sale and government‐sale process, and
communications with regulators concerning BPE or the BPE resolution. The
PIMCO Petitioners filed a § 1782 application against Santander, SHUSA, SBNA,
and SIS, seeking similar documents.4 Santander protested that it was not “found”
in the Southern District within the meaning of § 1782, § 1782 does not apply to
3 After briefing and argument, Santander informed this Court that it has been allowed to intervene in the European Union proceedings. Appellees’ Fed. R. App. P. 28(j) Letter. Given our discussion below, this development does not affect the outcome of these appeals. 4 Santander is a Spanish banking company with its principal place of business in
Madrid, Spain. SHUSA is a Virginia corporation with its principal place of business in Boston, Massachusetts. SBNA is a national banking association with its principal place of business in Boston, Massachusetts. SIS is a Delaware corporation with its principal place of business in New York, New York. Petitioners make no arguments on appeal concerning SHUSA or SBNA. Nor do they argue that either of these entities should somehow be treated as agents of Santander. Accordingly, we focus on only Santander and SIS. 7 documents or witnesses located overseas, and discovery was otherwise
unwarranted. Santander conceded that SIS “resides or is found” in the Southern
District but contended that SIS was not involved with the acquisition of BPE.
C.
The district court denied the del Valle Ruiz Petitioners’ application and
denied in part the PIMCO Petitioners’ application, but the court granted the
PIMCO Petitioners’ request for discovery from SIS. See generally In re del Valle Ruiz,
342 F. Supp. 3d 448 (S.D.N.Y. 2018). The court first concluded that whatever the
statutory meaning of “found,” at a minimum § 1782 must comport with
constitutional due process, i.e., the court must have personal jurisdiction. Id. at
452–53. Under Daimler AG v. Bauman, 571 U.S. 117 (2014), none of the Santander
entities except SIS met the requirement for general jurisdiction. In re del Valle Ruiz,
342 F. Supp. 3d at 453–57, 459. With respect to specific jurisdiction, all of
Santander’s alleged New York contacts took place after the resolution had been
adopted, and the litigation abroad therefore could not be said to arise out of or
relate to those contacts.5 Id. at 453–59.
5 Although the district court specifically mentioned the retention of investment banks, and specifically noted that those banks were retained “prior to the sale of [BPE], to explore financing options for its acquisition,” the court failed to provide any rationale for why that contact was insufficient. See In re del Valle Ruiz, 342 F. Supp. 3d at 458. 8 The district court concluded that SIS “resides or is found” in the Southern
District of New York, the court thus had discretion to grant discovery against SIS,
and discovery was warranted under Intel Corp. v. Advanced Micro Devices, Inc., 542
U.S. 241 (2004). In re del Valle Ruiz, 342 F. Supp. 3d at 459–60. In doing so, the court
noted Santander was not a party to any of the foreign proceedings and, although
it had been ordered to produce some discovery in the Spanish criminal
proceeding, it was not “an especially active participant” in that proceeding. Id. at
549. The court rejected Santander’s extraterritoriality argument, concluding that
producing documents located abroad would not be unduly burdensome or
intrusive. Id. at 459–60 (citing In re Accent Delight Int’l Ltd., Nos. 16‐mc‐125, 18‐mc‐
50, 2018 WL 2849724, at *4 (S.D.N.Y. June 11, 2018), appeal docketed, No. 18‐1755).
The district court did not mention SIS specifically in its Intel analysis. These
consolidated appeals follow.
II.
These appeals present several issues of first impression. The parties dispute
the proper interpretation of § 1782’s requirement that a respondent “resides or is
found” in the district in which the district court ordering discovery sits.6
Petitioners insist that § 1782’s use of the word “found” is coextensive with the
6Both parties appear to assume that “resides” is properly understood to refer to where an individual or entity is “essentially at home” for purposes of general personal jurisdiction. 9 limits of personal jurisdiction consistent with due process (and that less process is
due for nonparties), whereas Santander argues that we must restrict § 1782’s
“found” language to general “tag” jurisdiction over individuals.7 Santander also
contends that § 1782 does not reach evidence located abroad and the district court
abused its discretion by allowing discovery against SIS, both points with which
Petitioners naturally disagree.8 We address these arguments in turn.
III.
“We review de novo a district court’s ruling that a petition satisfies Section
1782’s jurisdictional requirements.” Kiobel by Samkalden v. Cravath, Swaine & Moore
LLP, 895 F.3d 238, 243 (2d Cir. 2018). We likewise review de novo a district court’s
personal‐jurisdiction ruling, “construing all pleadings and affidavits in the light
most favorable to the [party asserting jurisdiction] and resolving all doubts in [that
party’s] favor.” See SPV Osus Ltd. v. UBS AG, 882 F.3d 333, 342 (2d Cir. 2018).
7 Tag jurisdiction refers to a court’s exercise of personal jurisdiction over an individual who is served, and thus “tagged,” while physically present in the forum. See In re Edelman, 295 F.3d 171, 179 (2d Cir. 2002) (citing Burnham v. Superior Ct. of Cal., 495 U.S. 604 (1990) (plurality opinion)); see also Kadic v. Karadzic, 70 F.3d 232, 247 (2d Cir. 1995) (“Fed. R. Civ. P. 4(e)(2) specifically authorizes personal service of a summons and complaint upon an individual physically present within a judicial district of the United States, and such personal service comports with the requirements of due process for the assertion of personal jurisdiction.”). 8 The Institute of International Bankers have moved for leave to file an amicus
curiae brief in support of Santander. That motion has been granted. 10 Section 1782 does not define “found.” Neither did the district court. It
instead concluded that even if “found” extended to the limits of personal
jurisdiction consistent with due process, Petitioners failed to demonstrate that
Santander was subject to either the court’s general or specific personal jurisdiction.
This is where we begin.
Santander urges us essentially to cabin “found” to the facts of In re Edelman,
295 F.3d 171 (2d Cir. 2002). Effectively, this would limit § 1782’s reach to
individuals and entities over which a district court has general personal
jurisdiction. This approach admittedly would result in a tidy, easily applicable
rule. We nonetheless decline the invitation and instead conclude that the statutory
scope of “found” extends to the limits of personal jurisdiction consistent with due
process.
In In re Edelman, this Court’s only case to address the “found” requirement
of § 1782, we addressed that requirement’s application to an individual. The
respondent there focused on the statutory language—“is found,” 28 U.S.C.
§ 1782(a) (emphasis added)—to argue “that a deponent must be residing or be
found in the district contemporaneously with the district court’s issuance of the
discovery order,” In re Edelman, 295 F.3d at 177–78, whereas the petitioner asserted
that a deponent need only be found in the district when served, id. at 178. We
11 reasoned that “another part of § 1782(a) supports a flexible reading of the phrase
‘resides or is found,’” specifically, the protections afforded by Rules 45 and 26 of
the Federal Rules of Civil Procedure as well as the district court’s “prudent
exercise of discretion.” Id. at 178–79.
We further noted that “the question of what it means to be found in a
particular locale is already the subject of well‐settled case law on territorial
jurisdiction,” i.e., tag jurisdiction. Id. at 179 (citing Burnham v. Superior Ct. of Cal.,
495 U.S. 604 (1990) (plurality opinion)). “Given that this so‐called tag jurisdiction
is consistent with due process,” we reasoned, “we do not think that § 1782(a),
which is simply a discovery mechanism and does not subject a person to liability,
requires more.” Id. Given this, and legislative history expressing Congress’s “aim
that the statute be interpreted broadly and that courts exercise discretion in
deciding whether, and in what manner, to order discovery in particular cases,” we
concluded that tag jurisdiction was sufficient to satisfy § 1782’s “found”
requirement. Id. at 179–80. But we did not conclude that tag jurisdiction was
necessary to satisfy § 1782. Indeed, our focus on tag jurisdiction comporting with
due process in no way suggests that § 1782’s reach should be coextensive only with
the limits of a district court’s general jurisdiction.
Santander nonetheless finds some support for its position in In re Edelman’s
analysis of § 1782’s legislative history. As originally enacted in 1948, § 1782
12 provided for “[t]he deposition of any witness residing within the United States,”
so long as the deposition was “taken before a person authorized to administer
oaths designated by the district court of any district where the witness resides or
may be found.” Act of June 25, 1948, Pub. L. No. 80‐773, § 1782, 62 Stat. 869, 949.
The next year, Congress struck the first “residing,” but left the latter “reside[]” or
“be found” requirement. Act of May 24, 1949, Pub. L. No. 81‐72, § 93, 63 Stat. 89,
103. As we noted, “the change was intended to ‘correct[] restrictive language in
section 1782 . . . and permit [] depositions in any judicial proceeding without
regard to whether the deponent is “residing” in the district or only sojourning
there.’” In re Edelman, 295 F.3d at 179–80 (alterations in original) (quoting H.R. Rep.
No. 81‐352, at 40 (1949), reprinted in 1949 U.S.C.C.A.N. 1254, 1270). We further
noted that “a sojourn is a temporary stay (as of a traveler in a foreign country).”
Id. at 180 (internal quotation marks omitted). Santander hangs its hat on this focus
on an individual’s physical presence to justify its preference to restrict “found” to
general tag jurisdiction.
Santander is not alone: Hans Smit, “a leading academic commentator on the
statute who played a role in its drafting,” Certain Funds, Accounts and/or Inv.
Vehicles v. KPMG, L.L.P., 798 F.3d 113, 119 (2d Cir. 2015), has stated of the term
“found” that “[t]he evident statutory purpose is to create adjudicatory authority
based on presence. Insofar as the term applies to legal rather than natural persons,
13 it may safely be regarded as referring to judicial precedents that equate systematic
and continuous local activities,” i.e., general jurisdiction, “with presence.” Hans
Smit, American Assistance to Litigation in Foreign and International Tribunals: Section
1782 of Title 28 of the U.S.C. Revisited, 25 SYRACUSE J. INT’L L. & COM. 1, 10 (1998)
(footnote omitted).
We are not convinced. Courts have consistently given broad interpretations
to similar “found” language in other statutes. See, e.g., Waeltz v. Delta Pilots Ret.
Plan, 301 F.3d 804, 810 (7th Cir. 2002); Varsic v. U.S. Dist. Ct., 607 F.2d 245, 248–49
(9th Cir. 1979); see also Appellant Br. at 27–32. We see no reason to replace the
“flexible reading of the phrase ‘resides or is found’” that we considered
appropriate in In re Edelman, 295 F.3d at 178, with the cramped reading Santander
suggests. Indeed, we have repeatedly recognized Congress’s intent that § 1782 be
“interpreted broadly,” especially given the district court’s ability “to exercise
discretion in deciding whether, and in what manner, to order discovery in
particular cases.” See id. at 180; see also Brandi‐Dohrn v. IKB Deutsche Industriebank
AG, 673 F.3d 76, 80 (2d Cir. 2012) (noting that, in pursuit of the statute’s “twin
goals” of providing “equitable and efficacious discovery procedures in United
States courts for the benefit of tribunals and litigants involved in litigation with
international aspects” and encouraging “foreign countries by example to provide
similar means of assistance to our courts,” “the statute has, over the years, been
14 given increasingly broad applicability” (internal quotation marks omitted)). We
hold, accordingly, that § 1782’s “resides or is found” language extends to the limits
of personal jurisdiction consistent with due process.
Having so concluded, we turn next to whether Santander’s contacts with
the Southern District were sufficient to subject it to the district court’s specific
personal jurisdiction.9
“The inquiry whether a forum State may assert specific jurisdiction over a
nonresident defendant focuses on the relationship among the defendant, the
forum, and the litigation.” Walden v. Fiore, 571 U.S. 277, 283–84 (2014) (internal
quotation marks omitted). “[T]he touchstone due process principle has been that,
before a court may exercise jurisdiction over a person or an organization, such as
a bank, that person or entity must have sufficient ‘minimum contacts’ with the
forum ‘such that the maintenance of the suit does not offend traditional notions of
fair play and substantial justice.’” Gucci Am., Inc. v. Weixing Li, 768 F.3d 122, 134
(2d Cir. 2014) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
9 Although Petitioners insist that “there is good reason to believe that the district court had general jurisdiction over Santander for discovery purposes,” they do not press this argument on appeal, see Appellant Br. at 36–37, and we do not consider it. 15 For specific jurisdiction, “there must be an ‘affiliation between the forum
and the underlying controversy, principally, [an] activity or an occurrence that
takes place in the forum State.’” Bristol‐Myers Squibb Co. v. Superior Ct. of Cal., 137
S. Ct. 1773, 1780 (2017) (alteration in original) (quoting Goodyear Dunlop Tires
Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)). Put differently, “[s]pecific
jurisdiction . . . permits adjudicatory authority only over issues that ‘aris[e] out of
or relat[e] to the [entity’s] contacts with the forum.’” Gucci Am., 768 F.3d at 134
(some alterations in original) (quoting Helicopteros Nacionales de Colombia, S.A. v.
Hall, 466 U.S. 408, 414 n.8 (1984)).
In principle, the two‐step analysis is well established: First, the court must
decide if the individual or entity has “purposefully directed his activities at . . . the
forum and the litigation . . . arise[s] out of or relate[s] to those activities.” Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (internal quotation marks and
citation omitted). Second, the court must “determine whether the assertion of
personal jurisdiction would comport with fair play and substantial justice.” Id. at
476 (internal quotation marks omitted). But “[t]he Supreme Court has not . . .
addressed specific jurisdiction over nonparties.” Gucci Am., 768 F.3d at 136.
In Gucci America, we suggested the following framework for nonparties:
(1) “first assess the connection between the nonparty’s contacts with the forum
and the order at issue” and (2) “then decide whether exercising jurisdiction for the
16 purposes of the order would comport with fair play and substantial justice.” Gucci
Am., 768 F.3d at 137. We further noted that at least one circuit had likewise applied
a “translated” version of the specific‐jurisdiction test to discovery requests “by
focusing on the connection between the nonparty’s contacts with the forum and
the discovery order at issue.” Id. at 141 (citing Application to Enforce Admin.
Subpoenas Duces Tecum of the SEC v. Knowles, 87 F.3d 413, 418 (10th Cir. 1996)). This
provides a starting point, but several issues somewhat muddy the analysis.10
Petitioners ask that we add clarity to two unresolved issues of specific
personal jurisdiction. Petitioners first request that we address exactly what
process is due an entity such as Santander, which is not subject to potential
liability. They insist that less process is due and that the process Santander
received was thus sufficient. Petitioners next seek guidance on what contacts are
necessary to give rise to specific personal jurisdiction. That is, what exactly do
“arising out of” and “related to” mean in this context? Petitioners insist that
“related to” encompasses a much broader swath of conduct than “arising out of,”
and it includes conduct such as Santander’s forum contacts here.
10 We note that in the context of a § 1782 application, the relevant “forum” is limited to the district in which the district court sits. See 28 U.S.C. § 1782(a) (referring to “[t]he district court of the district in which a person resides or is found”). 17 1.
Petitioners first urge us to conclude that the process due nonparties is less
than that due defendants, though Petitioners fail to define what that “less” might
mean.11 True, we have recognized that a “person who is subjected to liability . . .
far from home may have better cause to complain of an outrage to fair play” than
a nonparty. First Am. Corp. v. Price Waterhouse LLP, 154 F.3d 16, 20 (2d Cir. 1998).
But we have also observed that a nonparty may have interests, such as avoiding
the burdens of discovery, “genuinely independent” of any intent to frustrate a
court order. See Heyman v. Kline, 444 F.2d 65, 65–66 (2d Cir. 1971); see also Gucci
Am., 768 F.3d at 137 n.17 (recognizing these views). We decline to hold that there
is a categorically lower showing of due process needed to obtain discovery from a
nonparty. Instead, we think it enough for purposes of due process in these
circumstances that the nonparty’s contacts with the forum go to the actual
discovery sought rather than the underlying cause of action.
2.
Petitioners next ask us to divine the difference between “arising out of” and
“related to,” a difference the Supreme Court has yet to concede, much less
construe. See Helicopteros Nacionales, 466 U.S. at 415 n.10 (declining to reach the
11Although Santander and SIS are technically “parties” to this § 1782 proceeding, they are functionally nonparties in the sense that they are not subject to liability in the underlying foreign proceedings. 18 issues). But regardless of what, if any, conceptual distance separates “arising out
of” and “related to,” we have always required some causal relationship between
an entity’s in‐forum contacts and the proceeding at issue. See SPV Osus, 882 F.3d
at 344 (observing that courts differ on whether proximate or but‐for causation is
sufficient for specific personal jurisdiction but noting that “the standard applied
[in this Circuit] depends on ‘the relationship among the defendant, the forum, and
the litigation.’” (quoting Chew v. Dietrich, 143 F.3d 24, 29 (2d Cir. 1998))).
In the liability context, “[t]he exercise of specific jurisdiction depends on in‐
state activity that gave rise to the episode‐in‐suit.” Waldman v. Palestine Liberation
Org., 835 F.3d 317, 331 (2d Cir. 2016) (internal quotation marks omitted); see also
Bristol‐Myers Squibb, 137 S. Ct. at 1781 (holding that unrelated contacts cannot
diminish the required showing of an affiliation between the forum and the
underlying controversy). Translated to account for a § 1782 respondent’s
nonparty status, we thus hold that, where the discovery material sought
proximately resulted from the respondent’s forum contacts, that would be
sufficient to establish specific jurisdiction for ordering discovery. That is, the
respondent’s having purposefully availed itself of the forum must be the primary
or proximate reason that the evidence sought is available at all. On the other hand,
where the respondent’s contacts are broader and more significant, a petitioner
19 need demonstrate only that the evidence sought would not be available but for the
respondent’s forum contacts.12
3.
That settled, we turn to the case at hand. The district court concluded that
Santander’s related forum contacts all postdated the acquisition of BPE and could
therefore not be even but‐for “causes” of the availability of the evidence sought in
discovery. With one exception, we agree. That exception is Santander’s use of two
New York City firms, UBS and Citibank, to conduct due diligence on BPE for a
private sale that fell through before BPE was forced into resolution. According to
Santander’s CEO, but for having conducted that due diligence, “it would have been
impossible” for Santander to submit its resolution bid in time. See J. App. 469. But
this is Santander’s only forum contact that was connected to the discovery sought.
Petitioners were therefore required to show that this contact was the proximate
reason the evidence sought was available, not merely that the evidence would not
have been available but for the contact. This they failed to do. The only conduct
12 We realize that the use of terminology relating to causation is a somewhat awkward fit for discovery. Nonetheless, we think that the focus on the relationship between a § 1782 respondent’s forum contacts and the resulting availability of the evidence is a workable translation of the normal personal‐ jurisdiction framework. For instance, an applicant could target its discovery to all documents relating to x created during the course of respondent’s engagement with forum entity y. That our holding will generally require a § 1782 applicant to provide additional specificity concerning the discovery it seeks is a feature, not a flaw. Cf. Smit, supra, at 11. 20 that Petitioners claim is a cause of their discovery request is described in their
affidavit as follow: “According to media reports, Santander apparently was able
to complete a full due diligence of BPE approximately 20 days before the
Resolution . . . and had retained UBS and another New York‐based investment
banking and financial services company as advisors in the contemplated bid.” J.
App. 108. This in‐forum conduct relates only to BPE’s preresolution effort to seek
a buyer. But the Petitioners’ claim here (and likewise the bulk of the discovery
sought) arises from a separate financial transaction: the forced sale of BPE.13 See
SPV Osus, 882 F.3d at 344–45. We thus conclude that the district court properly
held that it lacked personal jurisdiction over Santander.
The district court did conclude, however, that it had general personal
jurisdiction over SIS, a conclusion not challenged on appeal. We thus turn next to
whether § 1782 allows for the discovery from SIS of evidence located abroad. That
is, does § 1782 apply extraterritorially?
IV.
Santander, on behalf of SIS, insists that the district court erred by not
applying a per se bar against discovery under § 1782 of evidence located abroad,
13We need not speculate whether the result would be different had Petitioners sought, for instance, only documents produced by the New York firms, rather than documents concerning BPE more generally, because Petitioners have pressed no such argument either in the district court or on appeal. 21 relying on the presumption against extraterritoriality. “Because the reach and
applicability of a statute are questions of statutory interpretation, we review a
lower court’s application of the presumption against extraterritoriality,” or as
here, its failure to do so, “de novo.” See In re Picard, 917 F.3d 85, 96 (2d Cir. 2019).
The “canon of statutory construction known as the presumption against
extraterritoriality” states that “[a]bsent clearly expressed congressional intent to
the contrary, federal laws will be construed to have only domestic application.”
RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090, 2100 (2016). The presumption
both “serves to avoid the international discord that can result when U.S. law is
applied to conduct in foreign countries” and also “reflects the more prosaic
commonsense notion that Congress generally legislates with domestic concerns in
mind.” Id. (internal quotation marks omitted). We agree with Petitioners that this
presumption has no role to play here.
The presumption against extraterritoriality is “typically appl[ied] to discern
whether an Act of Congress regulating conduct applies abroad.” Kiobel v. Royal
Dutch Petroleum Co., 569 U.S. 108, 116 (2013). But § 1782 “is simply a discovery
mechanism and does not subject a person to liability.” See In re Edelman, 295 F.3d
at 179. To be sure, the Supreme Court has stated in dicta that “we must ask this
question,” i.e., whether the presumption against extraterritoriality has been
rebutted, “regardless of whether the statute in question regulates conduct, affords
22 relief, or merely confers jurisdiction.” RJR Nabisco, 136 S. Ct. at 2101. But the
Court’s reference to conferring jurisdiction concerned the statute at issue in Kiobel,
where the Court noted that the statute did “not directly regulate conduct or afford
relief” but nonetheless “allow[ed] federal courts to recognize certain causes of
action” and was thus subject to the same “principles underlying the canon of
interpretation.” See Kiobel, 569 U.S. at 116; see also RJR Nabisco, 136 S. Ct. at 2100–
01. The Supreme Court has never applied the presumption against
extraterritoriality to a “strictly jurisdictional” statute, see Kiobel, 569 U.S. at 116, not
otherwise tethered to regulating conduct or providing a cause of action, see
RESTATEMENT (FOURTH) OF FOREIGN RELATIONS LAW § 404 cmt. a & n.3 (2018). We
see no reason to do so here.14
14Even if we were to conclude that the presumption against extraterritoriality is applicable to § 1782, we would nonetheless conclude that Congress’s incorporation of the Federal Rules of Civil Procedure, which had by then been interpreted to allow for extraterritorial discovery, see, e.g., Societe Internationale Pour Participations Industrielles Et Commerciales, S.A. v. Rogers, 357 U.S. 197, 199– 200, 204–06 (1958) (applying the “possession, custody, or control” test to documents held abroad); see also Act of Oct. 3, 1964, Pub. L. No. 88‐619, § 9(a), 78 Stat. 995, 997 (amending § 1782 to incorporate the Federal Rules of Civil Procedure), is sufficient to overcome the presumption, see RJR Nabisco, 136 S. Ct. at 2101 (“At the first step, we ask whether the presumption against extraterritoriality has been rebutted—that is, whether the statute gives a clear, affirmative indication that it applies extraterritorially.”); cf. id. at 2102–03 (holding that incorporation of extraterritorial predicates sufficed to give indication that statute applied to some foreign activity and noting that “an express statement of extraterritoriality is not essential”). 23 Still, lower courts in this Circuit have split on whether § 1782 can be used
to reach documents stored overseas,15 and we have yet to address the issue.16 See
In re Accent Delight Int’l Ltd., 696 F. App’x 537, 539 (2d Cir. 2017) (summary order).
In Sergeeva v. Tripleton Int’l Ltd., 834 F.3d 1194 (11th Cir. 2016), the Eleventh Circuit
became the first circuit court so far to address whether § 1782 applies
15 Compare, e.g., Purolite Corp. v. Hitachi Am., Ltd., No. 17‐mc‐67, 2017 WL 1906905, at *2 (S.D.N.Y. May 9, 2017) (no extraterritorial application); In re Application of Kreke Immobilien KG, No. 13‐mc‐110, 2013 WL 5966916, at *4 (S.D.N.Y. Nov. 8, 2013) (same); In re Godfrey, 526 F.Supp.2d 417, 423 (S.D.N.Y. 2007) (same); In re Microsoft Corp., 428 F. Supp. 2d 188, 194 n.5 (S.D.N.Y. 2006) (same); with In re Accent Delight Int’l Ltd., Nos. 16‐mc‐125, 18‐mc‐50, 2018 WL 2849724, at *4 (S.D.N.Y. June 11, 2018) (extraterritorial application); In re Application of Eli Lilly & Co., No. 09‐mc‐296, 2010 WL 2509133, at *4 (D. Conn. June 15, 2010) (same); In re Application of Gemeinshcaftspraxis Dr. Med. Schottdorf, No. M19‐88, 2006 WL 3844464, at *5 (S.D.N.Y. Dec. 29, 2006) (same). 16 Most courts that have concluded that § 1782 does not apply extraterritorially rely
on dicta from this Court, a contemporaneous Senate report, and a 1998 article by one of § 1782’s principal drafters. See Application of Sarrio, S.A., 119 F.3d 143, 147 (2d Cir. 1997) (“On its face, § 1782 does not limit its discovery power to documents located in the United States. . . . [But] despite the statute’s unrestrictive language, there is reason to think that Congress intended to reach only evidence located within the United States.”); S. Rep. No. 88‐1580 (1964), reprinted in 1964 U.S.C.C.A.N. 3782, 3788 (“in obtaining oral and documentary evidence in the United States” (emphasis added)); Smit, supra, at 11 (“[I]f Section 1782 could be used for this purpose, American courts would become clearing houses for requests for information from courts and litigants all over the world in search of evidence to be obtained all over the world.”). But given the plain meaning of the statute, which we adopt below, these considerations are insufficient to win the day. See, e.g., Green v. City of New York, 465 F.3d 65, 78 (2d Cir. 2006) (“Statutory analysis begins with the text and its plain meaning, if it has one. Only if an attempt to discern plain meaning fails because the statute is ambiguous, do we resort to canons of construction. If both the plain language and the canons of construction fail to resolve the ambiguity, we turn to the legislative history.” (citations omitted)). 24 extraterritorially. The Eleventh Circuit reasoned that the text of § 1782 authorizes
discovery pursuant to the Federal Rules of Civil Procedure. The Federal Rules of
Civil Procedure in turn authorize extraterritorial discovery so long as the
documents to be produced are within the subpoenaed party’s possession, custody,
or control. Hence § 1782 likewise allows extraterritorial discovery. See id. at 1199–
1200.
The Eleventh Circuit concluded, then, that “the location of responsive
documents and electronically stored information—to the extent a physical location
can be discerned in this digital age—does not establish a per se bar to discovery
under § 1782.” Id. at 1200. We find this reasoning persuasive. Our previous dicta
notwithstanding, we join the Eleventh Circuit in holding that a district court is not
categorically barred from allowing discovery under § 1782 of evidence located
abroad. That said, we note that a court may properly, and in fact should, consider
the location of documents and other evidence when deciding whether to exercise
its discretion to authorize such discovery. Cf. Mees v. Buiter, 793 F.3d 291, 302 (2d
Cir. 2015) (“[W]e have instructed that it is far preferable for a district court to
reconcile whatever misgivings it may have about the impact of its participation in
the foreign litigation by issuing a closely tailored discovery order rather than by
simply denying relief outright.” (internal quotation marks omitted)).
25 Having so decided, we turn finally to Santander’s argument that the district
court abused its discretion by granting discovery against SIS.
V.
Once a district court has concluded that it has jurisdiction, “[w]e review
the decision to grant a Section 1782 petition for an abuse of discretion.” Kiobel by
Samkalden, 895 F.3d at 244.
“To guide district courts in the decision to grant a Section 1782 petition, the
Supreme Court in Intel discussed non‐exclusive factors (the ‘Intel factors’) to be
considered in light of the ‘twin aims’ of section 1782 . . . .” Id. “The Intel factors
are not to be applied mechanically,” and “[a] district court should also take into
account any other pertinent issues arising from the facts of the particular dispute.”
Id. at 245. Those factors are (1) whether “the person from whom discovery is
sought is a participant in the foreign proceeding,“ in which event “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”; (2) “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 assistance”; (3) “whether the § 1782(a) request conceals an attempt to
circumvent foreign proof‐gathering restrictions or other policies of a foreign
26 country or the United States”; and (4) whether the request is “unduly intrusive or
burdensome.” Intel, 542 U.S. at 264–65.
Santander primarily protests that the district court failed to analyze any of
the factors with respect to SIS. The district court stated that it considered the Intel
factors as to SIS and found “that discovery against SIS is appropriate” but failed
to identify SIS in its subsequent analysis. See In re del Valle Ruiz, 342 F. Supp. 3d at
459. Nonetheless, the factors plainly weighed in favor of discovery against SIS.
First, SIS is not a party to any of the foreign proceedings. Second, there is no
evidence that the foreign proceedings would be unreceptive to the evidence.
Third, no argument has been made that Petitioners are attempting to procure
documents from SIS in contravention of restrictions in place in the foreign
proceedings. And fourth, neither Santander nor SIS has made any showing that
the production of any responsive documents would be unduly intrusive or
burdensome.
CONCLUSION
For the foregoing reasons, we hold that (1) § 1782’s “resides or is found”
language extends its reach to the limits of personal jurisdiction consistent with due
process, but Santander’s forum contacts were nonetheless insufficient to subject it
to the district court’s personal jurisdiction and (2) there is no per se bar under
27 § 1782 to extraterritorial discovery, and the district court acted within its discretion
when permitting discovery from SIS. We AFFIRM the orders of the district court.