Foreign Discovery Application Must Relate to an Ongoing Case

• Pages: 26-26
• Date: 01 October 2023
• Author: Aubrey Eyrolles
• Subject Matter: Civil Law

Published in Litigation News Volume 49, Number 1, Fall 2023. © 202 3 by the American Bar As sociation. Reprodu ced with permission . All rights reser ved. This information o r any portion ther eof may not be copied o r disseminated in any form

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there is a movement away from expan-

sion and toward some type of contrac-

tion,” notes Parker.

Foreign Discovery

Application Must

Relate to an

Ongoing Case

By Aubrey Eyrolles, Litigation News

Contributing Editor

Lawyers f‌ielding discovery requests

for foreign legal proceedings now

have additional guidance following

one federal appellate court’s ruling on

the scope of 28 U.S.C. § 1782. The pro-

vision allows parties litigating abroad

to obtain discovery in the United

States for use in a foreign proceeding.

However, ABA Litigation Section lead-

ers suggest that courts are unlikely to

allow open-ended f‌ishing expeditions.

Mangouras v. Squire Patton Boggs

began with a dispute over an oil tanker

that sank o the coast of Spain in

2002. Spain f‌iled a civil suit in the U.S.

District Court for the Southern District

of New York against the agency that

certif‌ied the tanker as seaworthy and

10 years later f‌iled criminal charges

against the ship’s captain in its own

court system.

In 2013, the captain sought discov-

ery related to Spain’s expert under

section1782, in furtherance of his

ongoing criminal trial and possible

future proceedings, including a pri-

vately instituted criminal proceeding

against the expert for allegedly falsi-

fying testimony and a submission to

the European Court of Human Rights

(ECHR) regarding due process viola-

tions. The district court concluded

that the captain met the require-

ments under section 1782 but denied

discovery because he failed to seek

the information through “Spanish

proof mechanisms.” The U.S. Court

of Appeals for the Second Circuit

armed the denial but indicated the

captain could renew his application if

circumstances changed.

In 2017, the captain f‌iled two new

section1782 applications: one seek-

ing expert discovery from the law f‌irm

that previously represented Spain and

another seeking materials from the

expert himself. The court granted his

applications, spurring disputes regard-

ing the scope of the required produc-

tion.

After resolving the parties’ discovery

disputes, the district court determined

there was no longer a “live controversy”

as required for a section1782 appli-

cation “because the proceedings for

which the applications were directed

have either been terminated or will not

occur.” The court denied the captain’s

request to keep the matter open so he

could obtain discovery for a newly f‌iled

proceeding before the United Nations

Human Rights Committee.

On appeal, the captain admitted he

never f‌iled the criminal action against

the expert, and his ECHR complaint

had been dismissed as “manifestly ill-

founded.” He argued the district court

nonetheless should have allowed him

to proceed with discovery for the

United Nations case, even though it

was not mentioned in his section 1782

applications.

The Second Circuit found the cap-

tain’s appeal moot because the pro-

ceedings referenced in the original

applications were no longer ongoing.

The court refused to leave the door

open indef‌initely for the later-f‌iled

United Nations action, reasoning that

the applications would otherwise never

be moot because the litigants could

invent “novel proceedings in which the

disputed discovery could theoretically

be used.”

Section 1782 applications can be

useful for foreign litigants because U.S.

discovery rules tend to be more lib-

eral than other jurisdictions, Litigation

Section leaders say. Unlike in the

United States, “[w]hen you f‌ile suit in

civil law jurisdictions like Spain, you

need to have a cause of action and a

claim at the time you f‌ile suit,” explains

David Y. Loh, New York, NY, cochair

of the Section’s Admiralty Litigation

Committee. “They do not usually allow

you to get any discovery. You can ask

the judge to order one side to produce

information, but the opportunity to get

that information is very limited.”

“This case illustrates that due to the

delay inherent in section 1782 proceed-

ings, mootness is a serious concern,”

states Henry L. Parr Jr., Greenville, SC,

cochair of the International Litigation

& Dispute Resolution Committee. “The

foreign proceeding might be over

before U.S. courts f‌inally resolve issues

regarding the section 1782 petition.”

Parr advises that “attorneys seeking

information under section 1782 should

think carefully in describing the pro-

ceedings for which the information is

requested. To the extent that there are

proceedings that will likely last longer,

those proceedings should be included

on the application.”

Frivolous Copyright

Claims Do Not

Warrant Attorney

Fees

By Jared H. L orenz, Litigation News

Contributing Editor

While a prevailing defendant under the

Copyright Act has a “strong presump-

tion” for an award of attorney fees,

several factors may justify a court’s

decision to deny fees, according to one

federal appellate court. The appeals

court explained that the fees presump-

tion “require[s] a fact-specif‌ic, case-by-

case inquiry.” ABA leaders believe this

case exemplif‌ies the need to evaluate

whether facts and case law support

pursuing litigation.

The conf‌lict in Timothy O’Brien,

LLC d/b/a Apple Wellness v. Knott

began when a former employee of

Apple Wellness, a chain of vitamin

stores, opened a competing vitamin

shop. Apple Wellness sued the former

employee and his new business for

infringing on Apple Wellness’s trade-

mark, trade dress, and copyrights. The

defendants f‌iled counterclaims based

on tortious interference and retaliation.

When the U.S. District Court for the

Western District of Wisconsin denied

the plainti’s motion for a preliminary

injunction, the plainti moved to dismiss

without prejudice. After the district court

also rejected that motion, the plainti

dismissed its case with prejudice.

The defendants moved for fees, but

the district court denied the motion,

explaining there was a lack of evidence

to prove the suit was f‌iled with an

improper motive or that any future friv-

olous suits would ensue.

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