18‐3226 (L) In re del Valle Ruiz

In the United States Court of Appeals For the Second Circuit

August Term, 2018

Argued: March 25, 2019 Decided: October 7, 2019

Docket Nos. 18‐3226 (L), 18‐3474 (Con), 18‐3629 (XAP)

IN RE: APPLICATION OF ANTONIO DEL VALLE RUIZ AND OTHERS FOR AN ORDER TO TAKE DISCOVERY FOR USE IN FOREIGN PROCEEDINGS PURSUANT TO

Appeal from the United States District Court for the Southern District of New York Nos. 18‐mc‐85, 18‐mc‐127 – Edgardo Ramos, Judge.

Before: PARKER, HALL, and DRONEY, Circuit Judges.

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

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.

Having so held, we affirm the district court’s orders.

AFFIRMED.

JAVIER H. RUBINSTEIN, P.C. (C. Harker Rhodes IV, Kirkland & Ellis LLP, Washington, DC, Lauren F. Friedman, Lucila I.M. Hemmingsen, Joseph Myer Sanderson, Kirkland & Ellis LLP, New York, NY, on the brief), Kirkland & Ellis LLP, Chicago, IL, for Petitioners–Appellants Antonio del Valle Ruiz, et al.

DAVID MADER (Peter Evan Calamari Bento, on the brief), Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY, for Petitioners–Appellants– Cross‐Appellees Pacific Investment Management Company LLC and Anchorage Capital Group, LLC.

ELBERT LIN (Samuel A. Danon, Hunton Andrews Kurth LLP, Miami, FL, Johnathon E. 2 Schronce, Hunton Andrews Kurth LLP, Richmond, VA, Joseph J. Saltarelli, Hunton Andrews Kurth LLP, New York, NY, on the brief), Hunton Andrews Kurth LLP, Richmond, VA, for Respondents–Appellees Banco Santander, S.A., Santander Holdings U.S.A., Inc., and Santander Bank, N.A. and Respondent–Appellee– Cross‐Appellant Santander Investment Securities Inc.

HALL, Circuit Judge:

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

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.

3 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.

Having so held, we affirm the district court’s orders.

I.

Section 1782 provides that “[t]he 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.”

(a). The order may prescribe the

applicable practice and procedure for discovery, but “[t]o the extent that the order

does not prescribe otherwise, the testimony or statement shall be taken, and the

4 document or other thing produced, in accordance with the Federal Rules of Civil

Procedure.”

A.

As of June 2017, BPE was Spain’s sixth‐largest bank, with assets of

approximately €147 billion. After the financial crisis of 2008, however, BPE

became aware that it had many toxic and nonperforming assets (“NPAs”) on its

books. BPE implemented between 2012 and 2016 a variety of measures to address

its exposure to NPAs and did so without any government assistance. By the end

of 2016, however, business conditions began to deteriorate after Spanish

governmental entities started making large withdrawals.

In May 2017, BPE, contemplating a private sale, created a virtual data room

for interested buyers. Among those interested was Santander, which retained

New York‐based UBS and Citibank to advise on a contemplated bid. After

completing its due diligence, Santander purportedly was prepared to offer to buy

BPE for €3 billion with an additional capital injection of €4 billion. Meanwhile,

BPE suffered an all‐out run on deposits after reports that it was a bankruptcy risk

and facing resolution, a form of government‐forced sale.1

1See generally Regulation 806/2014, of the European Parliament and of the Council of 15 July 2014 on Establishing Uniform Rules and a Uniform Procedure for the Resolution of Credit Institutions and a Single Resolution Fund and Amending Regulation (EU) No 1093/2010, 2014 O.J. (L 225) 1 (discussing the resolution process). 5 On June 6, 2017, the European Central Bank informed the European Single

Resolution Board that BPE was “failing or likely to fail.” J. App. 115. That same

day, and at the direction of the Single Resolution Board, Spain’s national banking

supervisory authority (“FROB”) invited several banks, including Santander, to

submit bids by midnight, ostensibly pursuant to a resolution. Only Santander

submitted a bid, and that bid was for one Euro (€1).2 On June 7, 2017, it was

publicly announced that Santander’s bid had been accepted. Apparently, another

potential bidder had complained that it did not have enough time to prepare a bid.

According to a news report, Santander’s CEO had stated that “Santander was able

to do it because we had done due diligence 20 days earlier. Otherwise, it would

have been impossible.” J. App. 469.

As a result of BPE’s resolution, a group of 55 Mexican investors in BPE (the

“del Valle Ruiz Petitioners”), as well as United States‐based investment and asset

management firms Pacific Investment Management Company LLC and

Anchorage Capital Group, LLC (the “PIMCO Petitioners”), suffered significant

financial losses. Both sets of petitioners brought legal challenges to the BPE

resolution in the Court of Justice of the European Union, the del Valle Ruiz

Petitioners brought an international arbitration proceeding against Spain, and the

2Yes, really: One Euro. See J. App. 685 (letter from FROB stating that bids for the purchase of all BPE shares “must be an exact figure in Euros not a range and must be equal to or greater than one Euro (€1)”); see also J. App. 694. 6 PIMCO Petitioners sought to intervene in Spanish criminal proceedings against

BPE. Santander has sought, but at the time of argument had not yet been granted

leave, to intervene in these proceedings, all of which are ongoing.3

B.

The del Valle Ruiz Petitioners filed a § 1782 application in the Southern

District of New York seeking discovery from Santander and its wholly‐owned

subsidiaries Santander Holdings U.S.A., Inc. (“SHUSA”) and Santander Bank,

N.A. (“SBNA”). The del Valle Ruiz Petitioners sought documents relating to BPE’s

liquidity position, both the private‐sale and government‐sale process, and

communications with regulators concerning BPE or the BPE resolution. The

PIMCO Petitioners filed a § 1782 application against Santander, SHUSA, SBNA,

and SIS, seeking similar documents.4 Santander protested that it was not “found”

in the Southern District within the meaning of § 1782, § 1782 does not apply to

3 After briefing and argument, Santander informed this Court that it has been allowed to intervene in the European Union proceedings. Appellees’ Fed. R. App. P. 28(j) Letter. Given our discussion below, this development does not affect the outcome of these appeals. 4 Santander is a Spanish banking company with its principal place of business in

Madrid, Spain. SHUSA is a Virginia corporation with its principal place of business in Boston, Massachusetts. SBNA is a national banking association with its principal place of business in Boston, Massachusetts. SIS is a Delaware corporation with its principal place of business in New York, New York. Petitioners make no arguments on appeal concerning SHUSA or SBNA. Nor do they argue that either of these entities should somehow be treated as agents of Santander. Accordingly, we focus on only Santander and SIS. 7 documents or witnesses located overseas, and discovery was otherwise

unwarranted. Santander conceded that SIS “resides or is found” in the Southern

District but contended that SIS was not involved with the acquisition of BPE.

C.

The district court denied the del Valle Ruiz Petitioners’ application and

denied in part the PIMCO Petitioners’ application, but the court granted the

PIMCO Petitioners’ request for discovery from SIS. See generally In re del Valle Ruiz,

(S.D.N.Y. 2018). The court first concluded that whatever the

statutory meaning of “found,” at a minimum § 1782 must comport with

constitutional due process, i.e., the court must have personal jurisdiction. Id. at

452–53. Under Daimler AG v. Bauman,

(2014), none of the Santander

entities except SIS met the requirement for general jurisdiction. In re del Valle Ruiz,

342 F. Supp. 3d at 453–57, 459. With respect to specific jurisdiction, all of

Santander’s alleged New York contacts took place after the resolution had been

adopted, and the litigation abroad therefore could not be said to arise out of or

relate to those contacts.5

at 453–59.

5 Although the district court specifically mentioned the retention of investment banks, and specifically noted that those banks were retained “prior to the sale of [BPE], to explore financing options for its acquisition,” the court failed to provide any rationale for why that contact was insufficient. See In re del Valle Ruiz,

. 8 The district court concluded that SIS “resides or is found” in the Southern

District of New York, the court thus had discretion to grant discovery against SIS,

and discovery was warranted under Intel Corp. v. Advanced Micro Devices, Inc.,

(2004). In re del Valle Ruiz, 342 F. Supp. 3d at 459–60. In doing so, the court

noted Santander was not a party to any of the foreign proceedings and, although

it had been ordered to produce some discovery in the Spanish criminal

proceeding, it was not “an especially active participant” in that proceeding. Id. at

549. The court rejected Santander’s extraterritoriality argument, concluding that

producing documents located abroad would not be unduly burdensome or

intrusive. Id. at 459–60 (citing In re Accent Delight Int’l Ltd., Nos. 16‐mc‐125, 18‐mc‐

50,

, at *4 (S.D.N.Y. June 11, 2018), appeal docketed, No. 18‐1755).

The district court did not mention SIS specifically in its Intel analysis. These

consolidated appeals follow.

II.

These appeals present several issues of first impression. The parties dispute

the proper interpretation of § 1782’s requirement that a respondent “resides or is

found” in the district in which the district court ordering discovery sits.6

Petitioners insist that § 1782’s use of the word “found” is coextensive with the

6Both parties appear to assume that “resides” is properly understood to refer to where an individual or entity is “essentially at home” for purposes of general personal jurisdiction. 9 limits of personal jurisdiction consistent with due process (and that less process is

due for nonparties), whereas Santander argues that we must restrict § 1782’s

“found” language to general “tag” jurisdiction over individuals.7 Santander also

contends that § 1782 does not reach evidence located abroad and the district court

abused its discretion by allowing discovery against SIS, both points with which

Petitioners naturally disagree.8 We address these arguments in turn.

III.

“We review de novo a district court’s ruling that a petition satisfies Section

1782’s jurisdictional requirements.” Kiobel by Samkalden v. Cravath, Swaine & Moore

LLP,

(2d Cir. 2018). We likewise review de novo a district court’s

personal‐jurisdiction ruling, “construing all pleadings and affidavits in the light

most favorable to the [party asserting jurisdiction] and resolving all doubts in [that

party’s] favor.” See SPV Osus Ltd. v. UBS AG,

(2d Cir. 2018).

7 Tag jurisdiction refers to a court’s exercise of personal jurisdiction over an individual who is served, and thus “tagged,” while physically present in the forum. See In re Edelman,

, 179 (2d Cir. 2002) (citing Burnham v. Superior Ct. of Cal.,

(1990) (plurality opinion)); see also Kadic v. Karadzic,

(2d Cir. 1995) (“Fed. R. Civ. P. 4(e)(2) specifically authorizes personal service of a summons and complaint upon an individual physically present within a judicial district of the United States, and such personal service comports with the requirements of due process for the assertion of personal jurisdiction.”). 8 The Institute of International Bankers have moved for leave to file an amicus

curiae brief in support of Santander. That motion has been granted. 10 Section 1782 does not define “found.” Neither did the district court. It

instead concluded that even if “found” extended to the limits of personal

jurisdiction consistent with due process, Petitioners failed to demonstrate that

Santander was subject to either the court’s general or specific personal jurisdiction.

This is where we begin.

A.

Santander urges us essentially to cabin “found” to the facts of In re Edelman,

(2d Cir. 2002). Effectively, this would limit § 1782’s reach to

individuals and entities over which a district court has general personal

jurisdiction. This approach admittedly would result in a tidy, easily applicable

rule. We nonetheless decline the invitation and instead conclude that the statutory

scope of “found” extends to the limits of personal jurisdiction consistent with due

process.

In In re Edelman, this Court’s only case to address the “found” requirement

of § 1782, we addressed that requirement’s application to an individual. The

respondent there focused on the statutory language—“is found,”

(a) (emphasis added)—to argue “that a deponent must be residing or be

found in the district contemporaneously with the district court’s issuance of the

discovery order,” In re Edelman, 295 F.3d at 177–78, whereas the petitioner asserted

that a deponent need only be found in the district when served,

. We

11 reasoned that “another part of § 1782(a) supports a flexible reading of the phrase

‘resides or is found,’” specifically, the protections afforded by Rules 45 and 26 of

the Federal Rules of Civil Procedure as well as the district court’s “prudent

exercise of discretion.” Id. at 178–79.

We further noted that “the question of what it means to be found in a

particular locale is already the subject of well‐settled case law on territorial

jurisdiction,” i.e., tag jurisdiction. Id. at 179 (citing Burnham v. Superior Ct. of Cal.,

(1990) (plurality opinion)). “Given that this so‐called tag jurisdiction

is consistent with due process,” we reasoned, “we do not think that § 1782(a),

which is simply a discovery mechanism and does not subject a person to liability,

requires more.” Id. Given this, and legislative history expressing Congress’s “aim

that the statute be interpreted broadly and that courts exercise discretion in

deciding whether, and in what manner, to order discovery in particular cases,” we

concluded that tag jurisdiction was sufficient to satisfy § 1782’s “found”

requirement. Id. at 179–80. But we did not conclude that tag jurisdiction was

necessary to satisfy § 1782. Indeed, our focus on tag jurisdiction comporting with

due process in no way suggests that § 1782’s reach should be coextensive only with

the limits of a district court’s general jurisdiction.

Santander nonetheless finds some support for its position in In re Edelman’s

analysis of § 1782’s legislative history. As originally enacted in 1948, § 1782

12 provided for “[t]he deposition of any witness residing within the United States,”

so long as the deposition was “taken before a person authorized to administer

oaths designated by the district court of any district where the witness resides or

may be found.” Act of June 25, 1948, Pub. L. No. 80‐773, § 1782,

, 949.

The next year, Congress struck the first “residing,” but left the latter “reside[]” or

“be found” requirement. Act of May 24, 1949, Pub. L. No. 81‐72, § 93,

,

103. As we noted, “the change was intended to ‘correct[] restrictive language in

section 1782 . . . and permit [] depositions in any judicial proceeding without

regard to whether the deponent is “residing” in the district or only sojourning

there.’” In re Edelman, 295 F.3d at 179–80 (alterations in original) (quoting H.R. Rep.

No. 81‐352, at 40 (1949), reprinted in 1949 U.S.C.C.A.N. 1254, 1270). We further

noted that “a sojourn is a temporary stay (as of a traveler in a foreign country).”

(internal quotation marks omitted). Santander hangs its hat on this focus

on an individual’s physical presence to justify its preference to restrict “found” to

general tag jurisdiction.

Santander is not alone: Hans Smit, “a leading academic commentator on the

statute who played a role in its drafting,” Certain Funds, Accounts and/or Inv.

Vehicles v. KPMG, L.L.P.,

(2d Cir. 2015), has stated of the term

“found” that “[t]he evident statutory purpose is to create adjudicatory authority

based on presence. Insofar as the term applies to legal rather than natural persons,

13 it may safely be regarded as referring to judicial precedents that equate systematic

and continuous local activities,” i.e., general jurisdiction, “with presence.” Hans

Smit, American Assistance to Litigation in Foreign and International Tribunals: Section

1782 of Title 28 of the U.S.C. Revisited, 25 SYRACUSE J. INT’L L. & COM. 1, 10 (1998)

(footnote omitted).

We are not convinced. Courts have consistently given broad interpretations

to similar “found” language in other statutes. See, e.g., Waeltz v. Delta Pilots Ret.

Plan,

(7th Cir. 2002); Varsic v. U.S. Dist. Ct.,

, 248–49

(9th Cir. 1979); see also Appellant Br. at 27–32. We see no reason to replace the

“flexible reading of the phrase ‘resides or is found’” that we considered

appropriate in In re Edelman, 295 F.3d at 178, with the cramped reading Santander

suggests. Indeed, we have repeatedly recognized Congress’s intent that § 1782 be

“interpreted broadly,” especially given the district court’s ability “to exercise

discretion in deciding whether, and in what manner, to order discovery in

particular cases.” See id. at 180; see also Brandi‐Dohrn v. IKB Deutsche Industriebank

AG,

(2d Cir. 2012) (noting that, in pursuit of the statute’s “twin

goals” of providing “equitable and efficacious discovery procedures in United

States courts for the benefit of tribunals and litigants involved in litigation with

international aspects” and encouraging “foreign countries by example to provide

similar means of assistance to our courts,” “the statute has, over the years, been

14 given increasingly broad applicability” (internal quotation marks omitted)). We

hold, accordingly, that § 1782’s “resides or is found” language extends to the limits

of personal jurisdiction consistent with due process.

Having so concluded, we turn next to whether Santander’s contacts with

the Southern District were sufficient to subject it to the district court’s specific

personal jurisdiction.9

B.

“The inquiry whether a forum State may assert specific jurisdiction over a

nonresident defendant focuses on the relationship among the defendant, the

forum, and the litigation.” Walden v. Fiore,

, 283–84 (2014) (internal

quotation marks omitted). “[T]he touchstone due process principle has been that,

before a court may exercise jurisdiction over a person or an organization, such as

a bank, that person or entity must have sufficient ‘minimum contacts’ with the

forum ‘such that the maintenance of the suit does not offend traditional notions of

fair play and substantial justice.’” Gucci Am., Inc. v. Weixing Li,

(2d Cir. 2014) (quoting Int’l Shoe Co. v. Washington,

(1945)).

9 Although Petitioners insist that “there is good reason to believe that the district court had general jurisdiction over Santander for discovery purposes,” they do not press this argument on appeal, see Appellant Br. at 36–37, and we do not consider it. 15 For specific jurisdiction, “there must be an ‘affiliation between the forum

and the underlying controversy, principally, [an] activity or an occurrence that

takes place in the forum State.’” Bristol‐Myers Squibb Co. v. Superior Ct. of Cal.,

(2017) (alteration in original) (quoting Goodyear Dunlop Tires

Operations, S.A. v. Brown,

(2011)). Put differently, “[s]pecific

jurisdiction . . . permits adjudicatory authority only over issues that ‘aris[e] out of

or relat[e] to the [entity’s] contacts with the forum.’” Gucci Am.,

(some alterations in original) (quoting Helicopteros Nacionales de Colombia, S.A. v.

Hall,

, 414 n.8 (1984)).

In principle, the two‐step analysis is well established: First, the court must

decide if the individual or entity has “purposefully directed his activities at . . . the

forum and the litigation . . . arise[s] out of or relate[s] to those activities.” Burger

King Corp. v. Rudzewicz,

(1985) (internal quotation marks and

citation omitted). Second, the court must “determine whether the assertion of

personal jurisdiction would comport with fair play and substantial justice.”

(internal quotation marks omitted). But “[t]he Supreme Court has not . . .

addressed specific jurisdiction over nonparties.” Gucci Am.,

.

In Gucci America, we suggested the following framework for nonparties:

(1) “first assess the connection between the nonparty’s contacts with the forum

and the order at issue” and (2) “then decide whether exercising jurisdiction for the

16 purposes of the order would comport with fair play and substantial justice.” Gucci

Am.,

. We further noted that at least one circuit had likewise applied

a “translated” version of the specific‐jurisdiction test to discovery requests “by

focusing on the connection between the nonparty’s contacts with the forum and

the discovery order at issue.”

at 141 (citing Application to Enforce Admin.

Subpoenas Duces Tecum of the SEC v. Knowles,

(10th Cir. 1996)). This

provides a starting point, but several issues somewhat muddy the analysis.10

Petitioners ask that we add clarity to two unresolved issues of specific

personal jurisdiction. Petitioners first request that we address exactly what

process is due an entity such as Santander, which is not subject to potential

liability. They insist that less process is due and that the process Santander

received was thus sufficient. Petitioners next seek guidance on what contacts are

necessary to give rise to specific personal jurisdiction. That is, what exactly do

“arising out of” and “related to” mean in this context? Petitioners insist that

“related to” encompasses a much broader swath of conduct than “arising out of,”

and it includes conduct such as Santander’s forum contacts here.

10 We note that in the context of a § 1782 application, the relevant “forum” is limited to the district in which the district court sits. See

(a) (referring to “[t]he district court of the district in which a person resides or is found”). 17 1.

Petitioners first urge us to conclude that the process due nonparties is less

than that due defendants, though Petitioners fail to define what that “less” might

mean.11 True, we have recognized that a “person who is subjected to liability . . .

far from home may have better cause to complain of an outrage to fair play” than

a nonparty. First Am. Corp. v. Price Waterhouse LLP,

(2d Cir. 1998).

But we have also observed that a nonparty may have interests, such as avoiding

the burdens of discovery, “genuinely independent” of any intent to frustrate a

court order. See Heyman v. Kline,

, 65–66 (2d Cir. 1971); see also Gucci

Am.,

n.17 (recognizing these views). We decline to hold that there

is a categorically lower showing of due process needed to obtain discovery from a

nonparty. Instead, we think it enough for purposes of due process in these

circumstances that the nonparty’s contacts with the forum go to the actual

discovery sought rather than the underlying cause of action.

2.

Petitioners next ask us to divine the difference between “arising out of” and

“related to,” a difference the Supreme Court has yet to concede, much less

construe. See Helicopteros Nacionales,

n.10 (declining to reach the

11Although Santander and SIS are technically “parties” to this § 1782 proceeding, they are functionally nonparties in the sense that they are not subject to liability in the underlying foreign proceedings. 18 issues). But regardless of what, if any, conceptual distance separates “arising out

of” and “related to,” we have always required some causal relationship between

an entity’s in‐forum contacts and the proceeding at issue. See SPV Osus,

(observing that courts differ on whether proximate or but‐for causation is

sufficient for specific personal jurisdiction but noting that “the standard applied

[in this Circuit] depends on ‘the relationship among the defendant, the forum, and

the litigation.’” (quoting Chew v. Dietrich,

(2d Cir. 1998))).

In the liability context, “[t]he exercise of specific jurisdiction depends on in‐

state activity that gave rise to the episode‐in‐suit.” Waldman v. Palestine Liberation

Org.,

(2d Cir. 2016) (internal quotation marks omitted); see also

Bristol‐Myers Squibb,

(holding that unrelated contacts cannot

diminish the required showing of an affiliation between the forum and the

underlying controversy). Translated to account for a § 1782 respondent’s

nonparty status, we thus hold that, where the discovery material sought

proximately resulted from the respondent’s forum contacts, that would be

sufficient to establish specific jurisdiction for ordering discovery. That is, the

respondent’s having purposefully availed itself of the forum must be the primary

or proximate reason that the evidence sought is available at all. On the other hand,

where the respondent’s contacts are broader and more significant, a petitioner

19 need demonstrate only that the evidence sought would not be available but for the

respondent’s forum contacts.12

3.

That settled, we turn to the case at hand. The district court concluded that

Santander’s related forum contacts all postdated the acquisition of BPE and could

therefore not be even but‐for “causes” of the availability of the evidence sought in

discovery. With one exception, we agree. That exception is Santander’s use of two

New York City firms, UBS and Citibank, to conduct due diligence on BPE for a

private sale that fell through before BPE was forced into resolution. According to

Santander’s CEO, but for having conducted that due diligence, “it would have been

impossible” for Santander to submit its resolution bid in time. See J. App. 469. But

this is Santander’s only forum contact that was connected to the discovery sought.

Petitioners were therefore required to show that this contact was the proximate

reason the evidence sought was available, not merely that the evidence would not

have been available but for the contact. This they failed to do. The only conduct

12 We realize that the use of terminology relating to causation is a somewhat awkward fit for discovery. Nonetheless, we think that the focus on the relationship between a § 1782 respondent’s forum contacts and the resulting availability of the evidence is a workable translation of the normal personal‐ jurisdiction framework. For instance, an applicant could target its discovery to all documents relating to x created during the course of respondent’s engagement with forum entity y. That our holding will generally require a § 1782 applicant to provide additional specificity concerning the discovery it seeks is a feature, not a flaw. Cf. Smit, supra, at 11. 20 that Petitioners claim is a cause of their discovery request is described in their

affidavit as follow: “According to media reports, Santander apparently was able

to complete a full due diligence of BPE approximately 20 days before the

Resolution . . . and had retained UBS and another New York‐based investment

banking and financial services company as advisors in the contemplated bid.” J.

App. 108. This in‐forum conduct relates only to BPE’s preresolution effort to seek

a buyer. But the Petitioners’ claim here (and likewise the bulk of the discovery

sought) arises from a separate financial transaction: the forced sale of BPE.13 See

SPV Osus, 882 F.3d at 344–45. We thus conclude that the district court properly

held that it lacked personal jurisdiction over Santander.

The district court did conclude, however, that it had general personal

jurisdiction over SIS, a conclusion not challenged on appeal. We thus turn next to

whether § 1782 allows for the discovery from SIS of evidence located abroad. That

is, does § 1782 apply extraterritorially?

IV.

Santander, on behalf of SIS, insists that the district court erred by not

applying a per se bar against discovery under § 1782 of evidence located abroad,

13We need not speculate whether the result would be different had Petitioners sought, for instance, only documents produced by the New York firms, rather than documents concerning BPE more generally, because Petitioners have pressed no such argument either in the district court or on appeal. 21 relying on the presumption against extraterritoriality. “Because the reach and

applicability of a statute are questions of statutory interpretation, we review a

lower court’s application of the presumption against extraterritoriality,” or as

here, its failure to do so, “de novo.” See In re Picard,

(2d Cir. 2019).

The “canon of statutory construction known as the presumption against

extraterritoriality” states that “[a]bsent clearly expressed congressional intent to

the contrary, federal laws will be construed to have only domestic application.”

RJR Nabisco, Inc. v. European Cmty.,

(2016). The presumption

both “serves to avoid the international discord that can result when U.S. law is

applied to conduct in foreign countries” and also “reflects the more prosaic

commonsense notion that Congress generally legislates with domestic concerns in

mind.”

(internal quotation marks omitted). We agree with Petitioners that this

presumption has no role to play here.

The presumption against extraterritoriality is “typically appl[ied] to discern

whether an Act of Congress regulating conduct applies abroad.” Kiobel v. Royal

Dutch Petroleum Co.,

(2013). But § 1782 “is simply a discovery

mechanism and does not subject a person to liability.” See In re Edelman, 295 F.3d

at 179. To be sure, the Supreme Court has stated in dicta that “we must ask this

question,” i.e., whether the presumption against extraterritoriality has been

rebutted, “regardless of whether the statute in question regulates conduct, affords

22 relief, or merely confers jurisdiction.” RJR Nabisco,

. But the

Court’s reference to conferring jurisdiction concerned the statute at issue in Kiobel,

where the Court noted that the statute did “not directly regulate conduct or afford

relief” but nonetheless “allow[ed] federal courts to recognize certain causes of

action” and was thus subject to the same “principles underlying the canon of

interpretation.” See Kiobel,

; see also RJR Nabisco, 136 S. Ct. at 2100–

01. The Supreme Court has never applied the presumption against

extraterritoriality to a “strictly jurisdictional” statute, see Kiobel,

, not

otherwise tethered to regulating conduct or providing a cause of action, see

RESTATEMENT (FOURTH) OF FOREIGN RELATIONS LAW § 404 cmt. a & n.3 (2018). We

see no reason to do so here.14

14Even if we were to conclude that the presumption against extraterritoriality is applicable to § 1782, we would nonetheless conclude that Congress’s incorporation of the Federal Rules of Civil Procedure, which had by then been interpreted to allow for extraterritorial discovery, see, e.g., Societe Internationale Pour Participations Industrielles Et Commerciales, S.A. v. Rogers,

, 199– 200, 204–06 (1958) (applying the “possession, custody, or control” test to documents held abroad); see also Act of Oct. 3, 1964, Pub. L. No. 88‐619, § 9(a),

, 997 (amending § 1782 to incorporate the Federal Rules of Civil Procedure), is sufficient to overcome the presumption, see RJR Nabisco,

(“At the first step, we ask whether the presumption against extraterritoriality has been rebutted—that is, whether the statute gives a clear, affirmative indication that it applies extraterritorially.”); cf.

at 2102–03 (holding that incorporation of extraterritorial predicates sufficed to give indication that statute applied to some foreign activity and noting that “an express statement of extraterritoriality is not essential”). 23 Still, lower courts in this Circuit have split on whether § 1782 can be used

to reach documents stored overseas,15 and we have yet to address the issue.16 See

In re Accent Delight Int’l Ltd.,

(2d Cir. 2017) (summary order).

In Sergeeva v. Tripleton Int’l Ltd.,

(11th Cir. 2016), the Eleventh Circuit

became the first circuit court so far to address whether § 1782 applies

15 Compare, e.g., Purolite Corp. v. Hitachi Am., Ltd., No. 17‐mc‐67,

, at *2 (S.D.N.Y. May 9, 2017) (no extraterritorial application); In re Application of Kreke Immobilien KG, No. 13‐mc‐110,

, at *4 (S.D.N.Y. Nov. 8, 2013) (same); In re Godfrey,

(S.D.N.Y. 2007) (same); In re Microsoft Corp.,

, 194 n.5 (S.D.N.Y. 2006) (same); with In re Accent Delight Int’l Ltd., Nos. 16‐mc‐125, 18‐mc‐50,

, at *4 (S.D.N.Y. June 11, 2018) (extraterritorial application); In re Application of Eli Lilly & Co., No. 09‐mc‐296,

, at *4 (D. Conn. June 15, 2010) (same); In re Application of Gemeinshcaftspraxis Dr. Med. Schottdorf, No. M19‐88,

, at *5 (S.D.N.Y. Dec. 29, 2006) (same). 16 Most courts that have concluded that § 1782 does not apply extraterritorially rely

on dicta from this Court, a contemporaneous Senate report, and a 1998 article by one of § 1782’s principal drafters. See Application of Sarrio, S.A.,

(2d Cir. 1997) (“On its face, § 1782 does not limit its discovery power to documents located in the United States. . . . [But] despite the statute’s unrestrictive language, there is reason to think that Congress intended to reach only evidence located within the United States.”); S. Rep. No. 88‐1580 (1964), reprinted in 1964 U.S.C.C.A.N. 3782, 3788 (“in obtaining oral and documentary evidence in the United States” (emphasis added)); Smit, supra, at 11 (“[I]f Section 1782 could be used for this purpose, American courts would become clearing houses for requests for information from courts and litigants all over the world in search of evidence to be obtained all over the world.”). But given the plain meaning of the statute, which we adopt below, these considerations are insufficient to win the day. See, e.g., Green v. City of New York,

(2d Cir. 2006) (“Statutory analysis begins with the text and its plain meaning, if it has one. Only if an attempt to discern plain meaning fails because the statute is ambiguous, do we resort to canons of construction. If both the plain language and the canons of construction fail to resolve the ambiguity, we turn to the legislative history.” (citations omitted)). 24 extraterritorially. The Eleventh Circuit reasoned that the text of § 1782 authorizes

discovery pursuant to the Federal Rules of Civil Procedure. The Federal Rules of

Civil Procedure in turn authorize extraterritorial discovery so long as the

documents to be produced are within the subpoenaed party’s possession, custody,

or control. Hence § 1782 likewise allows extraterritorial discovery. See id. at 1199–

1200.

The Eleventh Circuit concluded, then, that “the location of responsive

documents and electronically stored information—to the extent a physical location

can be discerned in this digital age—does not establish a per se bar to discovery

under § 1782.” Id. at 1200. We find this reasoning persuasive. Our previous dicta

notwithstanding, we join the Eleventh Circuit in holding that a district court is not

categorically barred from allowing discovery under § 1782 of evidence located

abroad. That said, we note that a court may properly, and in fact should, consider

the location of documents and other evidence when deciding whether to exercise

its discretion to authorize such discovery. Cf. Mees v. Buiter,

(2d

Cir. 2015) (“[W]e have instructed that it is far preferable for a district court to

reconcile whatever misgivings it may have about the impact of its participation in

the foreign litigation by issuing a closely tailored discovery order rather than by

simply denying relief outright.” (internal quotation marks omitted)).

25 Having so decided, we turn finally to Santander’s argument that the district

court abused its discretion by granting discovery against SIS.

V.

Once a district court has concluded that it has jurisdiction, “[w]e review

the decision to grant a Section 1782 petition for an abuse of discretion.” Kiobel by

Samkalden,

.

“To guide district courts in the decision to grant a Section 1782 petition, the

Supreme Court in Intel discussed non‐exclusive factors (the ‘Intel factors’) to be

considered in light of the ‘twin aims’ of section 1782 . . . .”

“The Intel factors

are not to be applied mechanically,” and “[a] district court should also take into

account any other pertinent issues arising from the facts of the particular dispute.”

. Those factors are (1) whether “the person from whom discovery is

sought is a participant in the foreign proceeding,“ in which event “the need for

§ 1782(a) aid generally is not as apparent as it ordinarily is when evidence is

sought from a nonparticipant in the matter arising abroad”; (2) “the nature of the

foreign tribunal, the character of the proceedings underway abroad, and the

receptivity of the foreign government or the court or agency abroad to U.S. federal‐

court assistance”; (3) “whether the § 1782(a) request conceals an attempt to

circumvent foreign proof‐gathering restrictions or other policies of a foreign

26 country or the United States”; and (4) whether the request is “unduly intrusive or

burdensome.” Intel, 542 U.S. at 264–65.

Santander primarily protests that the district court failed to analyze any of

the factors with respect to SIS. The district court stated that it considered the Intel

factors as to SIS and found “that discovery against SIS is appropriate” but failed

to identify SIS in its subsequent analysis. See In re del Valle Ruiz,

. Nonetheless, the factors plainly weighed in favor of discovery against SIS.

First, SIS is not a party to any of the foreign proceedings. Second, there is no

evidence that the foreign proceedings would be unreceptive to the evidence.

Third, no argument has been made that Petitioners are attempting to procure

documents from SIS in contravention of restrictions in place in the foreign

proceedings. And fourth, neither Santander nor SIS has made any showing that

the production of any responsive documents would be unduly intrusive or

burdensome.

CONCLUSION

For the foregoing reasons, we hold that (1) § 1782’s “resides or is found”

language extends its reach to the limits of personal jurisdiction consistent with due

process, but Santander’s forum contacts were nonetheless insufficient to subject it

to the district court’s personal jurisdiction and (2) there is no per se bar under

27 § 1782 to extraterritorial discovery, and the district court acted within its discretion

when permitting discovery from SIS. We AFFIRM the orders of the district court.

28