Mees v. Buiter

Citation793 F.3d 291
Decision Date17 July 2015
Docket NumberNo. 14–1866.,14–1866.
PartiesHeleen MEES, Applicant–Appellant, v. Willem H. BUITER, Respondent–Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Olav A. Haazen, Grant & Eisenhofer P.A., New York, New York (Joshua J. Libling, Boies, Schiller & Flexner LLP, New York, New York, and Brooke A. Alexander, Boies, Schiller & Flexner LLP, Armonk, New York, on the brief), for ApplicantAppellant, Heleen Mees.

Adrienne B. Koch, Katsky Korins LLP, New York, New York (Joseph Weiner, Katsky Korins LLP, New York, New York, on the brief), for RespondentAppellee, Willem H. Buiter.

Before: LEVAL, LYNCH, and LOHIER, Circuit Judges.

Opinion

GERARD E. LYNCH, Circuit Judge:

Applicant-appellant Heleen Mees appeals from a May 6, 2014 order of the United States District Court for the Southern District of New York (Loretta A. Preska, C.J. ) denying her application to compel discovery from respondentappellee Willem H. Buiter pursuant to 28 U.S.C. § 1782. That statute permits a district court, “upon the application of any interested person,” to order a person within its jurisdiction 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.” 28 U.S.C. § 1782(a).1 In her application and at oral argument before the district court, Mees explained that she sought discovery from Buiter to plead and to prove a contemplated defamation suit against him in her home country, the Netherlands. The district court denied the application on the ground that the materials sought were not “for use” in the Dutch proceeding, as required by § 1782, because they were not necessary for Mees to draft an adequate complaint.

That conclusion was erroneous in two respects. First, an applicant may satisfy the statute's “for use” requirement even if the discovery she seeks is not necessary for her to succeed in the foreign proceeding. Second, the discovery need not be sought for the purpose of commencing a foreign proceeding in order to be “for use” in that proceeding. That is so even where a § 1782 applicant is a private litigant who has yet to commence the foreign proceeding for which discovery is sought, so long as the proceeding is within reasonable contemplation. A § 1782 applicant satisfies the statute's “for use” requirement by showing that the materials she seeks are to be used at some stage of a foreign proceeding. Mees has clearly made such a showing.

We therefore VACATE the order denying her application and REMAND for the district court to reconsider the application in light of our conclusion that Mees has satisfied the “for use” requirement of § 1782.

BACKGROUND

Mees's application arose after Buiter made certain accusations against her to law enforcement, causing her to be arrested and charged in New York State Court with five misdemeanor counts of stalking, menacing, and harassment. The charging Information included an affidavit from Buiter stating that, since 2009, Mees had sent him thousands of emails and on several occasions attempted to meet him at his residence, despite numerous requests that she cease all contact with him. Buiter also stated that Mees's actions—including wishing that his “plane falls out of the sky” and sending him a picture of dead birds—caused him to fear for his safety. J.A. 72–73. The criminal complaint leading to Mees's arrest also contained an affidavit from a New York City Police Department detective reporting accusations against Mees made to him by Buiter. While the two affidavits are similar, the detective's affidavit included a number of sexually explicit allegations omitted from Buiter's affidavit. On March 10, 2014, Mees accepted an Adjournment in Contemplation of Dismissal in her criminal case, pursuant to which the charges would be dismissed in one year if Mees completed counseling and complied with an order of protection for Buiter and his wife.2 Due largely to Buiter's position as a prominent business and academic economist, the case and its racy details were widely reported by the press in both New York and the Netherlands.3

Mees filed her § 1782 application on March 28, 2014, seeking discovery from Buiter “as part of her Dutch attorneys' investigation of a defamation claim against Buiter” in the Netherlands, “and to prepare for the prosecution of such claim.” J.A. at 7. The application asserted that Buiter's accusations were false and “foreseeably passed on to the media,” and that re-publication of the accusations by the press had caused Mees to lose her job teaching economics at New York University, as well as other opportunities, and to suffer emotional harm.Id. at 7–8. The application maintained that Mees's interest in Buiter was not unrequited, and that in fact she and Buiter had “regularly had romantic encounters” dating back to 2008. Id. at 9, 19. To support this assertion of a consensual relationship, the application included as exhibits over a dozen emails between Mees and Buiter. It sought discovery primarily of a range of materials that would corroborate Mees's claims of having met Buiter on 27 “Romantic Encounter Dates.”4 Id. at 19.

Lastly, the application included a declaration of Mees's Dutch attorney regarding Dutch procedural law. It stated that, in Dutch proceedings, a plaintiff has a ‘duty to substantiate’ the complaint” that is “particularly demanding, even among European ‘fact pleading’ systems.” Id. at 108. The complaint is followed by the defendant's “statement of defense,” after which a plaintiff cannot presume to have an opportunity to supplement the facts” because [t]here is no reply as of right.” Id. at 110 (emphasis omitted). Thus, the declaration argued, it is important “to provide all information on the dispute at the beginning of the process.” Id. at 109 (emphasis omitted). The declaration also stated that the Dutch courts were receptive to discovery assistance from U.S. courts via § 1782.

Buiter opposed Mees's application and submitted a competing declaration from his Dutch attorney regarding the requirements of Dutch law. That declaration stated that, contrary to the declaration of Mees's attorney, the Dutch pleading standard “is not particularly high.” Id. at 190. It disputed Mees's argument that she needed to present all her evidence in the complaint, stating that [t]he obligation to disclose the relevant evidence is ... limited to the evidence that is known to the plaintiff.” Id. at 188 (emphasis omitted). It concluded that Mees “does not need the information she has requested in order to file [her] claim,” because she “appears to already have” sufficient evidence to satisfy the Dutch pleading threshold. Id. at 190.

The district court held oral argument on the application on May 6, 2014. At that time, Mees emphasized that “the purpose [of her application] is dual”: both “to get the evidence that is necessary to prove the case in Holland, and ... to plead [that] case.” Special App'x at 38. Buiter countered that Mees had failed to satisfy two of the statutory requirements for discovery under § 1782. First, he argued that Mees's potential defamation suit was not “within reasonable contemplation,” as required by the Supreme Court's decision in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 259, 124 S.Ct. 2466, 159 L.Ed.2d 355 (2004). Special App'x at 55. Second, he contended that “the failure to tie the discovery request to any actual need to meet Dutch pleading requirements is a failure to meet the [statute's] [']for use['] requirement.” Id. at 56.

At the conclusion of oral argument, the district court rejected Mees's application from the bench. The court explained that the “the basis for [its] decision is the requirement that [the] discovery be required ‘for use’ in the foreign proceeding,” id. at 59, and that the application was “denied primarily on the basis that the discovery is not necessary for use in a foreign proceeding,” id. at 61. The court based that conclusion largely on the fact that Mees appeared already able to make detailed allegations regarding her relationship with Buiter, and possessed numerous emails and other materials to support those allegations.5 Moreover, the court characterized as “conclusory” the argument of Mees's Dutch counsel that broad discovery was necessary to draft an adequate complaint under Dutch law, id. at 60, and noted that even according to Mees's counsel the complaint need only “sum up the evidence,” id. at 59.

Because the court based its decision on the application's failure to satisfy the “for use” requirement, it did not reach Buiter's argument that the defamation suit was not “within reasonable contemplation” under Intel. The court did, however, address some of the discretionary factors articulated in Intel and concluded that they weighed against granting the application. It found that the application “appear[ed] to be an attempt to circumvent the foreign proof-gathering restrictions, in that the extent of the discovery requested was far broader than that which appears to be available in the Dutch courts.” Id. Relatedly, the court found that “the [discovery] requests [,] taken in the context of the Dutch discovery scope[,] ... appear to be intrusive and burdensome.” Id. Finally, it found that granting the application “would contravene U.S. policy” because the request “appear[ed] to be designed to attack collaterally the still pending criminal prosecution here in New York.” Id.

After denying the application, the court explained that its ruling was “without prejudice to re-application if the Dutch courts indicate that additional material is necessary and for some reason the Dutch court is not able to order it produced there.” Id. at 61. On May 27, 2014, Mees timely appealed the order. On June 24, 2014, Mees served Buiter and his wife with a summons and complaint for a defamation suit filed in the Netherlands.6

DISCUSSION
1. Applicable Law

We review de novo the district court's interpretation of the statutory...

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