Litigation has become truly global, bringing the U.S. into eve r-closer contact with the rest of the world. Two recent decisions highlight this reality, considering requests for U.S.-style discovery to find evidence for a matter brought in the Netherlands and the applicability of the U.S. rule on preservation of evidence to a party located in Australia.
In Mees v. Buiter1 the U.S. Court of Appeals for the Second Circuit, on July 17, 2015, reversed the denial of an application for discovery brought by a Netherlands citizen seeking materials for use in a proceeding in the Netherlands, pursuant to 28 USC § 1782. The District Court had denied the application on the ground that Mees failed to show that they materials were necessary to commence a law suit in the Netherlands. In reversing the decision of Southern District Court Chief Judge Loretta Preska, the Circuit Court held that the statute requires only that the applicant show that they were “for use” in the foreign proceeding, not that the proceeding couldn’t be started without them. This decision should remove concerns about the need to show “necessity” of documents and data in the U.S. for use in a foreign proceeding.
In Lunkenheimer Co. v. Tyco Flow Control Pac. Party Ltd., the U.S. District Court for the Southern District of Ohio was asked to consider and rule upon the applicability of the U.S. rule on preservation of evidence to an Australian party with offices only in Australia. The court, citing a law journal article authored by Barton LLP partner Kenneth N. Rashbaum, held that the duty to preserve evidence when litigation is anticipated may apply to a foreign party, but that duty only commences as of the time a U.S. court has acquired jurisdiction over that party unless that party could be found to have reasonably anticipated litigation in the U.S. at an earlier time.
If you have questions concerning international judicial assistance or preservation of non-U.S. evidence, please contact Kenneth N. Rashbaum.
1Mees v. Buiter, 14-1866, NYLJ 1202732560960, at *1 (2nd Cir., Decided July 17, 2015) 14-1866