Interesting Second Circuit Decision on Section 1782 Discovery Applications

Today the U.S. Court of Appeals for the Second Circuit issued a unanimous decision in In re del Valle Ruiz. The case involves discovery applications under 28 U.S.C. § 1782, which provides: “The 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.”

Judge Hall’s opinion, joined by Judges Parker and Droney, begins:

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.

(emphasis added)

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