Overview
In an opinion yesterday, Judge Hellerstein authorized discovery from the law firm Cravath under 28 U.S.C. § 1782 relating to a claim that the petitioning party planned to file, but had not yet filed, in the Netherlands against a Cravath client.
Judge Hellerstein rejected Cravath’s argument that, since the Netherlands case hadn't been filed, the discovery was not (in the words of the statute) “for use in a proceeding in a foreign or international tribunal”:
In situations such as this, where there is no pending foreign proceeding, the "for use" requirement is still satisfied if the foreign proceeding is within "reasonable contemplation." Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 259 (2004). . . . [The petitioner] has provided objective indicia demonstrating that the Dutch proceeding is within reasonable contemplation. Dutch counsel has (1) drafted a writ of summons, which is the initiating document in Dutch proceedings; (2) applied for and obtained legal aid . . . from the Dutch Legal Aid Board, which required a showing that meaningful steps had been taken to prepare for the action; and (3) sent "liability letters" to [the defendant], which had the effect of tolling the statute of limitations. [The petitioner] further emphasizes that in the Netherlands, a plaintiff must present a certain amount of evidence at the outset of the action in order to proceed. Given that [the petitioner] seeks discovery from Cravath in order to collect evidence that may be necessary for the Dutch action to survive, the fact that [it] has yet to commence the action is both defensible and logical.
