Finally, the magistrate judge rejected Chauhan's argument on the merits, assuming without deciding that a qualifying proceeding must be "adjudicative" in nature to qualify under § 1782, see Euromepa S.A. v. R. Esmerian, Inc., 154 F.3d 24, 27 (2d Cir. 1998) (holding that a proceeding must be "adjudicative in nature" to benefit from § 1782 discovery), and finding that the asset-freeze proceeding in Cyprus was adjudicative within the meaning of Euromepa.
This Court has held that "[a] review of a district court's decision under § 1782 . . . has two components: the first, as a matter of law, is whether the district court erred in its interpretation of the language of the statute and, if not, the second is whether the district court's decision to grant discovery on the facts before it was in excess of its discretion." Esses v. Hanania (In re Esses), 101 F.3d 873, 875 (2d Cir. 1996) (per curiam); accord Euromepa S.A. v. R. Esmerian, Inc. (In re Euromepa), 154 F.3d 24, 27 (2d Cir. 1998) (quoting Esses). Hence, we review de novo the district court's determination of whether Ishihara satisfied § 1782's requirements; and, if the requirements are satisfied, we review the district court's decision to grant discovery for abuse of discretion.
The three statutory prerequisites to obtain discovery under section 1782 require that: (1) the plaintiff seek discovery from a person who "resides or is found" in this district; (2) the discovery is "for use in a proceeding in a foreign or international tribunal"; and (3) the plaintiff is an "interested person." 28 U.S.C. § 1782(a); Euromepa, S.A. v. Esmerian, Inc., 154 F.3d 24, 27 (2nd Cir. 1998) ("Euromepa"); In re Barnwell Enterprises Ltd., 265 F.Supp.3d 1, 8-9 (D.D.C. 2017); In re Application of Gazprom Latin Am. Servicios, C.A., 4:14-MC-1186, 2016 WL 3654590, at *3 (S.D. Tex. July 6, 2016) (person "must reside or be found in the district, . . . discovery must be for use in a proceeding before a foreign tribunal[,]" and "application must be made by 'any interested person'"), appeal dismissed sub nom., 2016 WL 9959263 (5th Cir. Dec. 15, 2016) (No. 16-20469); Minis v. Thomson, 14-91050-DJC, 2014 WL 1599947, at *1 (D. Mass. Apr. 18, 2014); see Intel, 542 U.S. at 256-65. Once these three requirements are satisfied, the court considers the following "discretionary factors" commonly referred to as the Intel factors:
The Belyak respondents assert that “[t]he Second Circuit has made clear that discovery under 28 U.S.C. §1782 is not available in support of foreign post-judgment enforcement proceedings. See Euromepa, S.A. v. R. Esmerian, Inc., 154 F.3d 24, 28 (2d Cir. 1998). That is exactly what Lake Holding is improperly attempting to obtain with its application” seeking discovery in support of several judgment enforcement proceedings alleged as pending in Cyprus, France and Monaco.
Esses v. Hanania (In re Esses), 101 F.3d 873, 876 (2d Cir. 1996) (citing Euromepa S.A. v. R. Esmerian, Inc. (In re Euromepa, S.A.), 51 F.3d 1095, 1099 (2d Cir. 1995) (" Euromepa I")). It has cautioned, however, "against speculative forays into legal territories unfamiliar to federal judges," id. (internal quotation omitted), because such forays "would result in an unduly expensive and time-consuming fight about foreign law," Metallgesellschaft, 121 F.3d at 80 (internal citations and quotations omitted), thereby "undermining the twin aims of the statute." Id.; see also Euromepa, S.A. v. R. Esmerian, Inc. (In re Euromepa, S.A.), 154 F.3d 24, 28 (2d Cir. 1998) (" Euromepa II") ("[i]n the exercise of its discretion, the district court should not attempt to conduct a detailed analysis of foreign law, but should focus primarily on fostering these twin aims"). Consequently, "only upon authoritative proof that a foreign tribunal would reject evidence obtained with the aid of section 1782, should a district court refrain from granting the assistance offered by the act."
Beginning with the statutory requirements, the district court determined that if Nigeria had sought discovery for use in the English Proceeding, the application "would fail § 1782 ‘s second statutory requirement" – that discovery is sought for use in a proceeding before a foreign or international tribunal – because "[t]he pending English arbitral-enforcement proceeding" was of a "post-judgment character" akin to proceedings that this Court has held did not qualify under § 1782. Fed. Republic of Nigeria v. VR Advisory Servs., Ltd. , 499 F. Supp. 3d 3, 10 (S.D.N.Y. 2020), citing Euromepa, S.A. v. R. Esmerian, Inc. , 154 F.3d 24, 28 (2d Cir. 1998). Nevertheless, the district court "assume[d] arguendo" that the application sought documents for use in the Nigerian Proceedings, which it determined were qualifying proceedings under § 1782, and held that the other statutory requirements were satisfied.
Beginning with the statutory requirements, the district court determined that if Nigeria had sought discovery for use in the English Proceeding, the application "would fail § 1782's second statutory requirement" — that discovery is sought for use in a proceeding before a foreign or international tribunal — because "[t]he pending English arbitral-enforcement proceeding" was of a "post-judgment character" akin to proceedings that this Court has held did not qualify under § 1782. Fed. Republic of Nigeria v. VR Advisory Servs., Ltd., 499 F.Supp.3d 3, 10 (S.D.N.Y. 2020), citing Euromepa, S.A. v. R. Esmerian, Inc., 154 F.3d 24, 28 (2d Cir. 1998). Nevertheless, the district court "assume[d] arguendo" that the application sought documents for use in the Nigerian Proceedings, which it determined were qualifying proceedings under § 1782, and held that the other statutory requirements were satisfied.
In analyzing whether discovery being sought under Section 1782 is “for use in a proceeding before a foreign tribunal,” the Second Circuit has focused on “whether [the] foreign proceeding is adjudicative in nature” as well as whether “there is actually a foreign proceeding.” Euromepa, S.A. v. R. Esmerian, Inc., 154 F.3d 24, 27 (2d Cir. 1998); see also In re Gorsoan Ltd., 843 Fed.Appx. 352, 354 (2d Cir. 2021) (declining to decide whether Section 1782 “reaches discovery sought only to identify assets,” because on the record before the Court, even assuming Section 1782 did reach such discovery, the petitioner had not demonstrated that its intended “‘use' of the discovery it s[ought] [was] in ‘reasonable contemplation' of planned proceedings”)
Applicants have a burden to demonstrate "that they are in a position to use the evidence they seek through their § 1782 application" in the ongoing foreign proceeding. Certain Funds, Accounts &/or Inv. Vehicles v. KPMG, L.L.P., 798 F.3d 113, 120 (2d Cir. 2015); see also Euromepa, S.A. v. R. Esmerian, Inc., 154 F.3d 24, 29 (2d Cir. 1998) (materials cannot be for use when "there [are] no foreign proceedings, within the meaning of the statute, in which the discovery could be used."). To be "for use," an applicant need not demonstrate that the materials sought are ultimately admissible or discoverable in the foreign proceeding.
In determining whether the "for use" statutory requirement is met, the "focus[ ] [is] on two questions: (1) whether a foreign proceeding is adjudicative in nature; and (2) when there is actually a foreign proceeding." Euromepa, S.A. v. R. Esmerian, Inc. , 154 F.3d 24, 27 (2d Cir. 1998). The "for use" requirement must be analyzed "according to the particular facts of each case."