Discovery, requests from abroad
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international law update Volume 18, January–March 2012
© 2012 Transnational Law Associates, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com
encourage the dissemination of existing and future
works. Full compliance with Berne, Congress had
reason to believe, would expand the foreign markets
available to U.S. authors and invigorate protection
against piracy of U.S. works abroad, thereby
benetting copyright-intensive industries stateside
and inducing greater investment in the creative
process.” [Slip op. 26]
“Congress determined that U.S. interests were
best served by our full participation in the dominant
system of international copyright protection. ose
interests include ensuring exemplary compliance
with our international obligations, securing greater
protection for U.S. authors abroad, and remedying
unequal treatment of foreign authors. e judgment
§514 expresses lies well within the ken of the
political branches. It is our obligation, of course,
to determine whether the action Congress took,
wise or not, encounters any constitutional shoal.
For the reasons stated, we are satised it does not.
e judgment of the Court of Appeals for the Tenth
Circuit is therefore [a]rmed.” [Slip op. 36]
e Dissenters nd that the Copyright Clause
did not authorize Congress to enact the statute.
Conducting statutory interpretation, the dissenters
state that its conclusion has long been upheld by case
law. “e fact that, by withdrawing material from
the public domain, the statute inhibits an important
preexisting ow of information is sucient, when
combined with the other features of the statute
that I have discussed, to convince me that the
Copyright Clause, interpreted in the light of the
First Amendment, does not authorize Congress to
enact this statute.” [Slip op. 69]
: Golan v. Holder, 132 S. Ct. 873; 181
LE.2d 835 (2012).
DISCOVERy, REQUESTS
FROM ABROAD
S C ’
“ ”
Plainti, Anselm Brandi-Dohrn (Plainti),
is a shareholder of Defendant, IKB Deutsche
Industriebank AG (IKB), a bank located in
Germany. In July 2008, Plainti sued IKB in
Germany to recover for securities fraud. He stated
that IKB misled him into buying its shares by
failing to disclose its signicant exposure to risky
collateralized debt obligations (CDOs) backed by
U.S. based subprime mortgages. Moreover, IKB
issued a press release that falsely downplayed the
impact that the ratings agencies’ downgrading of
the CDOs would have on the Bank’s operations.
During the August 2010 trial in Germany, the
court dismissed the case and Plainti appealed to an
intermediate appellate court.
Plainti then led an ex parte application in
the U.S. District Court for the Southern District of
New York to serve subpoenas on three nonparties.
e discovery sought related to the exposure of the
CDOs and Plainti wishes to use it to persuade the
German appellate court to overturn the dismissal.
e district court initially granted the application
on July 27, 2011 and Plainti issued the subpoenas.
Before the third parties produced discovery, IKB
moved to vacate the order or quash the subpoenas.
On November 16, 2011, the district court granted
IKB’s motion to quash the subpoenas, nding that
the evidence sought was actually for use in the
German counsel’s other cases.
e U.S. Court of Appeals for the Second
Circuit reverses the district court’s order. e Court
analyzes 28 U.S.C. §1782. e Court notes that the
goal of the statute is to provide equitable discovery
procedures in the U.S. courts; therefore, courts have
liberally construed the statute. In the Court’s view,
the district court must consider several statutory
requirements and then use discretion in balancing a
number of factors. Once the balancing is complete,
a district court can deny the discovery request if they
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