Malev Hungarian Airlines v. United Technologies International Inc.

OAKES, Chief Judge: Malev Hungarian Airlines (“Malev”) appeals from an order entered in the United States District Court for the District of Connecticut on September 30, 1991, T. Em-met Clarie, Judge, denying Malev’s request to take discovery from United Technologies International, Inc., Pratt & Whitney Commercial Engine Business (“Pratt & Whitney”), pursuant to 28 U.S.C. § 1782 (1988), for use in proceedings before a Hungarian court. Because the district court relied on improper factors in denying Malev’s discovery request, we reverse and remand. I. On July 23, 1991, Pratt & Whitney, an airplane engine manufacturer, filed a complaint in the Municipal Court of Budapest, Hungary against Malev, the Hungarian national airline. In the complaint, Pratt & Whitney seeks specific performance of an alleged multi-million dollar December 1990 agreement by Malev to purchase a number of PW4000 jet engines from Pratt & Whitney in connection with the modernization of Malev’s fleet of aircraft. On September 16, 1991, four days after Malev filed its answer in the Hungarian court, Malev initiated this action in the United States District Court for the District of Connecticut. Malev requested that the district court enter an order pursuant to 28 U.S.C. § 1782 permitting discovery of Pratt & Whitney by Malev in the United States. In particular, Malev seeks to de [99] pose a number of individuals located in Connecticut who hold various positions with Pratt & Whitney and to obtain eighteen groups of documents purportedly relevant to the litigation in Hungary. On July 30, 1991, following a hearing on the matter, the district court entered an order denying Malev’s request for discovery under 28 U.S.C. § 1782. We review the district court’s decision to deny Malev’s request for assistance for an abuse of discretion. See Lo Ka Chun v. Lo To, 858 F.2d 1564, 1565-66 (11th Cir. 1988); In re Request for Judicial Assistance from the Seoul District Criminal Court, Seoul, Korea, 555 F.2d 720, 723-24 (9th Cir.1977). II. A. The genesis of 28 U.S.C. § 1782 (1988)1 sheds light on the policy aims which Congress sought to effectuate by enacting the legislation. In 1958, Congress created the Commission on International Rules of Judicial Procedure and instructed it to “investigate and study existing practices of judicial assistance and cooperation between the United States and foreign countries with a view to achieving improvements.” Pub.L. No. 85-906, 72 Stat. 1743 (1958). The Commission was further told to use that investigation and study as a basis upon which to “draft and recommend to the President any necessary legislation” to render “more readily ascertainable, efficient, economical, and expeditious” the “procedures of our State and Federal tribunals for the rendering of assistance to foreign courts and quasi-judicial agencies.” Id. On May 28, 1963, the Commission transmitted a proposed bill to the Speaker of the House of Representatives and the President of the Senate, following approval by the Administration, which included a provision to amend 28 U.S.C. § 1782 to its current version. In the transmittal letter, which the Senate Judiciary Committee included in its report on the bill, the Chairman of the Commission explained its hope that enactment of the proposed legislation would provide efficient means of assistance in our federal courts for litigants involved in international litigation and would prompt foreign courts to follow our generous example and provide similar assistance to our court systems. S.Rep. No. 1580, 88th Cong., 2d Sess. (1964), reprinted in 1964 U.S.C.C.A.N. 3782, 3792-94;2 see also In re Letter Rogatory from the Justice Court, Dist. of Montreal, Canada, 523 F.2d 562, 564-66 (6th Cir. 1975). The Senate Judiciary Committee agreed with the Commission’s understanding of the intent behind the legislation and explained in its report: Until recently, the United States has not engaged itself fully in efforts to improve practices of international cooperation in litigation. The steadily growing involvement of the United States in international intercourse and the resulting increase in litigation with international aspects have demonstrated the necessity for statutory improvements and other devices to facilitate the conduct of such litigation. Enactment of the bill into law will constitute a major step in bringing the United [100] States to the forefront of nations adjusting their procedures to those of sister nations and thereby providing equitable and efficacious procedures for the benefit of tribunals and litigants involved in litigation with international aspects. It is hoped that the initiative taken by the United States in improving its procedures will invite foreign countries similarly to adjust their procedures. Id. at 3783; see also Hans Smit, International Litigation Under the United States Code, 65 Colum.L.Rev. 1015, 1017-19 (1965) (author, who was Reporter of the Commission on International Rules of Judicial Procedure, explaining his view of the purposes behind the legislation in virtually identical terms). These twin aims of providing efficient means of assistance to participants in international litigation in our federal courts and encouraging foreign countries by example to provide similar means of assistance to our courts must inform our analysis of whether the district court abused its discretion by denying Malev’s request for assistance in the pending litigation before the Hungarian court. To that task, we now turn. B. In denying Malev’s request for discovery, the district court found that Malev’s request was “premature and unnecessary” because Malev “never made a formal discovery request upon Pratt & Whitney before the Hungarian court.” The district court concluded that discovery procedures are “fully available” to litigants in Hungary and that Malev should have first sought the requested discovery from the Hungarian court. We find nothing in the text of 28 U.S.C. § 1782 which would support a quasi-exhaustion requirement of the sort imposed by the district court. To the contrary, the plain language of 28 U.S.C. § 1782(a) states that “upon the application of any interested person,” the district court where the person from whom discovery is sought resides “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.” Furthermore, requiring an interested person first to seek discovery from the foreign or international tribunal is at odds with the twin purposes of 28 U.S.C. § 1782 as articulated in the legislative history. It would undermine the policy of improving procedures for assistance to foreign and international tribunals by imposing an additional burden on persons seeking assistance from our federal courts for matters relating to international litigation. Additionally, it would undermine the policy of prompting foreign courts to act similarly based on our own generous example. Finally, as far as we can discern, no other federal court has denied a direct request by a private foreign litigant for discovery pursuant to 28 U.S.C. § 1782 because the party seeking discovery has not first sought the information through the foreign or international tribunal. See, e.g. John Deere Ltd. v. Sperry Corp., 754 F.2d 132, 134 (3d Cir.1985) (granting direct request for discovery from private foreign litigant where discovery had not first been sought from Canadian court). We appreciate the district court’s concern, which was expressed repeatedly during the hearing on Malev’s application, that making discovery available through United States district courts to interested persons before foreign and international tribunals could potentially impose heavy burdens on our federal courts. But we are not at liberty to second-guess the policy choices of our Congress. However, we note that district courts issuing discovery orders pursuant to 28 U.S.C. § 1782 may impose conditions to minimize the compliance burdens, so long as those conditions do not impose extra-statutory barriers to obtaining discovery such as an exhaustion requirement. See S.Rep. No. 1580, 88th Cong., 2d. Sess. (1964), reprinted in 1964 U.S.C.C.A.N. 3782, 3788 (“[28 U.S.C. § 1782] leaves the issuance of an appropriate order to the discretion of the court which, in proper cases, may refuse to issue an order or may impose conditions it deems desirable.”); see also Section III, infra. [101] Therefore, to the extent the district court rested its decision to deny discovery to Malev because a request for discovery from Pratt & Whitney had not first been made to the Hungarian court in Budapest, we conclude that the district court abused its discretion. See Independent Oil & Chem. Workers v. Procter & Gamble, 864 F.2d 927, 929 (1st Cir.1988) (“Judicial discretion is necessarily broad — but it is not absolute. Abuse occurs ... when an improper factor is relied upon____”). The district court also indicated that “[ajbsent a request from the Hungarian court to become involved in the oversight of discovery,” it was denying Malev’s request. We believe it was improper for the district court to predicate its denial of an application for discovery under 28 U.S.C. § 1782 on the absence of a request for assistance from the Hungarian court. The plain language of the statute provides that “[tjhe order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person.” 28 U.S.C. § 1782(a) (1988) (emphasis added). This language was inserted as part of the effort to liberalize the assistance provided by American courts to foreign and international tribunals.3 By denying Malev’s application in the absence of a request from the Hungarian court, the district court read this provision out of the statute. The legislative history, case law, and critical commentaries strongly support our conclusion that the provision indeed means what it says. S.Rep. No. 1580, reprinted in 1964 U.S.C.C.A.N. at 3789 (“A request for judicial assistance under the proposed revision may either be contained in a letter rogatory or other request or be made in a direct application by an interested person, such as ... a party to the foreign or international litigation. Subsection (a) specifically so provides.”) (emphasis added); John Deere, 754 F.2d at 136; Smit, supra, 65 Colum.L.Rev. at 1027; Comment, Much Ado About 1782: A Look at Recent Problems with Discovery in the United States for Use in Foreign Litigation under 28 U.S.C. § 1782, 20 U.Miami Inter-Am.L.Rev. 429, 431 (1989). Finally, the district court indicated in its order denying Malev’s request that “[tjhis Court’s involvement would unnecessarily complicate the case and bring with it significant reciprocal discovery problems.” We are not entirely sure what the district court meant when it invoked the phrase “reciprocal discovery problems.” We think it is fair to infer, however, based on the parties’ submissions to the district court and the hearing transcript that the district court worried about having to supervise discovery from Malev by Pratt & Whitney in the United States as well, if it granted Malev’s request in order to ensure fairness to Pratt & Whitney. Congress intended, however, that 28 U.S.C. § 1782 would provide an avenue for judicial assistance to foreign or international tribunals whether or not reciprocal arrangements existed. See, e.g. John Deere, 754 F.2d at 135; Amram, The Proposed International Convention on the Service of Documents Abroad, 51 A.B.A.J. 650, 651 (1965) (“[28 U.S.C. § 1782] is a one-way street. It grants wide assistance to others, but demands nothing in return. It was deliberately drawn this way____”) (author was Chairman of the Advisory Committee to the United States Commission on International Rules of Judicial Procedure). Therefore, the district court was mistaken to the extent it believed that granting Malev’s request would necessarily require the district court to supervise discovery sought by Pratt & Whitney from Malev and it should not have predicated its decision on this belief. The district court was free to grant Malev’s request without assuming [102] responsibility for supervising Pratt & Whitney’s discovery from Malev.4 Based on these considerations, we hold that the district court abused its discretion by relying on improper factors in denying Malev’s application for discovery from Pratt & Whitney pursuant to 28 U.S.C. § 1782. III. On remand, we wish to note that the district court can utilize its powers under the Federal Rules of Civil Procedure to lessen significantly the burden of handling this discovery. See 28 U.S.C. § 1782(a) (1988) (“The [discovery] order may prescribe the practice and procedure ... for taking the testimony or statement or producing the document or other thing.”); see also S.Rep. No. 1580, reprinted in 1964 U.S.C.C.A.N. at 3788 (“[28 U.S.C. § 1782] leaves the issuance of an appropriate order to the discretion of the court, which, in proper cases ... may impose conditions it deems desirable.”). Specifically, the district court retains broad authority under Fed.R.Civ.P. 26(b)(1) to limit discovery where: (1) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; ... or (iii) the discovery is unduly burdensome or expensive____ Additionally, Rule 26(c) allows the court to order: (2) that the discovery may be had only on specified terms and conditions ... [and] (4) that certain matters not be inquired into, or that the scope of discovery be limited to certain matters. Pursuant to these provisions, the district court could require Malev to prepare a discovery plan, make a showing that the discovery is “not obtainable from some other source that is more convenient, less burdensome, or less expensive,” such as the Hungarian court, and then require Malev to take the discovery plan before the Hungarian court for a determination as to which requests are relevant before coming to the United States district court for actual discovery. By so doing, the district court could achieve its objective of minimizing the burdens involved with supervising Malev’s discovery from Pratt & Whitney while acting within the confines of 28 U.S.C. § 1782.5 IV. For these reasons, the order of the district court denying judicial assistance to Malev in seeking discovery from Pratt & Whitney under 28 U.S.C. § 1782 is reversed, and the case is remanded to the district court for proceedings consistent with the foregoing determination. Footnotes [1] 28 U.S.C. § 1782(a) (1988) provides in pertinent part: 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. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person____ [2] The letter provides in pertinent part: Enactment of the proposed bill into law will constitute a major step in bringing the United States to the forefront of nations adjusting their procedures to those of sister nations and thereby providing equitable and efficacious procedures for the benefit of tribunals and litigants involved in litigation with international aspects. The Commission hopes that the initiative taken by the United States in improving its procedures will invite foreign countries similarly to adjust their procedures____ Enactment of the proposed bill should encourage foreign nations to follow the example of the United States. Id. at 3793-94. [3] The 1964 legislation which enacted the current version of § 1782 also repealed 22 U.S.C. §§ 270-270g which placed undesirable limitations on the parties who could seek assistance from United States courts in proceedings before international tribunals. See S.Rep. 1580, reprinted in 1964 U.S.C.C.A.N. at 3784-85. [4] The district court can, of course, accept Malev’s offer to engage in "reciprocal discovery" which was first submitted to the district court in an affidavit in support of their petition for discovery and later reiterated in submissions to this court. Malev explained in these submissions that their offer of “reciprocal discovery” means making witnesses and documents available in the United States to the same extent Pratt & Whitney is required to do so. [5] In handling Malev’s discovery request, the district court may also wish to consider the implications of a written decision of the Municipal Court of Budapest, Hungary in the underlying litigation dated January 10, 1992. In light of the Hungarian court’s decision, the district court may conclude that discovery should be stayed until an interlocutory appeal in the Hungarian courts is resolved or that discovery should proceed immediately. We make no determination on these matters. Our holding today simply establishes that the district court abused its discretion in refusing to entertain Malev’s request for discovery pursuant to 28 U.S.C. § 1782.