
USCA1 Opinion

	




          December 4, 1992       ____________________                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                _____________________          No. 92-1663                  IN RE:  APPLICATION OF ASTA MEDICA, S.A., ET AL.,                      FOR AN ORDER TO TAKE DISCOVERY OF DAVID W.                    MORIARTY, JR., AND FOR A SUBPOENA DUCES TECUM,                        FOR USE IN FOREIGN COUNTRIES IN CIVIL                              PROCEEDINGS THERE PENDING,                                     ___________                       PFIZER, INC. AND DAVID W. MORIARTY, JR.,                                     Appellants.                                 ____________________          No. 92-1726                  IN RE:  APPLICATION OF ASTA MEDICA, S.A., ET AL.,                          FOR AN ORDER TO TAKE DISCOVERY OF                    HERMANN FAUBL AND FOR A SUBPOENA DUCES TECUM,                        FOR USE IN FOREIGN COUNTRIES IN CIVIL                              PROCEEDINGS THERE PENDING,                                     ___________                           PFIZER, INC. AND HERMANN FAUBL,                                     Appellants.                                 ____________________          No. 92-1727                  IN RE:  APPLICATION OF ASTA MEDICA, S.A., ET AL.,                          FOR AN ORDER TO TAKE DISCOVERY OF                 THOMAS MOTT BRENNAN AND FOR A SUBPOENA DUCES TECUM,                        FOR USE IN FOREIGN COUNTRIES IN CIVIL                              PROCEEDINGS THERE PENDING,                                     ___________                        PFIZER, INC. AND THOMAS MOTT BRENNAN,                                     Appellants.                                 ____________________          No. 92-1728                  IN RE:  APPLICATION OF ASTA MEDICA, S.A., ET AL.,                    FOR AN ORDER TO TAKE DISCOVERY OF PFIZER, INC.                         AND IRVING MAURICE GOLDMAN AND FOR A                  SUBPOENA DUCES TECUM, FOR USE IN FOREIGN COUNTRIES                         IN CIVIL PROCEEDINGS THERE PENDING,                                     ___________                       PFIZER, INC. AND IRVING MAURICE GOLDMAN,                                     Appellants.                                 ____________________          No. 92-1729                      IN RE:  APPLICATION OF ASTA MEDICA, S.A.,                      ET AL., FOR AN ORDER TO TAKE DISCOVERY OF                    BARRY MALCOLM BLOOM AND IRVING MAURICE GOLDMAN                           AND FOR A SUBPOENA DUCES TECUM,                             FOR USE IN FOREIGN COUNTRIES                         IN CIVIL PROCEEDINGS THERE PENDING,                                     ___________                   BARRY MALCOLM BLOOM AND IRVING MAURICE GOLDMAN,                                     Appellants.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                        Torruella and Boudin, Circuit Judges,                                              ______________                             and Keeton,* District Judge.                                          ______________                                _____________________               Stephen  D. Brown, with whom Bernard J. Bonn III, Timothy C.               _________________            ___________________  __________          Blank,  Joseph A. Tate, Dechert  Price & Rhoads,  Rudolf E. Hutz,          _____   ______________  _______________________   ______________          and Connolly, Bove, Lodge & Hutz, were on brief for appellants.              ____________________________               Zachary Shimer, with whom Stuart D. Baker, W. Colm McKeveny,               ______________            _______________  ________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.          Chadbourne & Parke,  Michael A. Nelson,  Deborah M. Mann,  Jensen          __________________   _________________   _______________   ______          Baird  Gardner  &  Henry,  John D.  Murnane,  Brumbaugh,  Graves,          ________________________   ________________   ___________________          Donohue  & Raymond, Marvin C. Soffen and Ostrolenk, Faber, Gerb &          __________________  ________________     ________________________          Soffen,  were on brief for appellees Asta Medica, S.A., Dagra BV,          ______          Laboratoires Sarget, S.A., NAPP Laboratories Limited, and Hovione          Sociedade Quimica, S.A.                                 ____________________                                 ____________________                                         -3-                    TORRUELLA,  Circuit  Judge.    Pursuant  to  28  U.S.C.                                ______________            1782(a),1 district courts are  authorized to assist foreign and          international tribunals, and the litigants before such tribunals,          in   obtaining  discovery  in  the   United  States  for  use  in          proceedings  abroad.    In  this appeal,  we  examine  whether an          applicant  under  28 U.S.C.    1782(a)  has  to make  a threshold          showing, prior to obtaining  such discovery, that the information          sought in  the  United  States  would  generally  be  subject  to          discovery  in  the  foreign  jurisdiction.    The  United  States          District  Court  for  the District  of  Maine  held  that such  a          requirement was  not necessary  and entered  an order  granting a          request for discovery.   In re Application of Asta  Medica, S.A.,                                   _______________________________________          794 F. Supp. 442 (D.Me. 1992).  We reverse.                                           I                    Appellant Pfizer, Inc. ("Pfizer") is involved in patent          litigation  proceedings  in  Europe against  Asta  Medica,  S.A.,                                        ____________________          1  28 U.S.C.   1782(a) 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  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 and                      may   direct   that   the  testimony   or                      statement  be given,  or the  document or                      other  thing be produced, before a person                      appointed by the court.                                         -4-          Laboratories Sarget, S.A., Dagra, BV, and Napp Laboratories, Ltd.          (collectively   "the   foreign    companies"),   four    European          pharmaceutical  companies.    Litigation  is pending  in  France,          Belgium,  England  and the  Netherlands  over a  patent  owned by          Pfizer  for   several  methods  to   manufacture  the  antibiotic          doxycycline.                      The process of the patent at issue involves homogeneous          catalyzed  production  of  doxycycline.   The  foreign  companies          assert that Pfizer derived  the invention of the process  from an          Italian company, Ankerfarm,  S.p.A. ("Ankerfarm"),  in the  early          1970's  while Pfizer  and Ankerfarm  negotiated a  proposed joint          venture  involving the  new process.   In  1971 and  1972, Pfizer          employees met with Ankerfarm employees working on the doxycycline          processing  technology  in  Milan   and  allegedly  learned   the          characteristics  of the  invention.   Although the  joint venture          between Ankerfarm and Pfizer  never materialized, Pfizer obtained          its own  patents on the  process.  The foreign  companies want to          establish that the process was in the public domain before Pfizer          applied  for  the  patent  and therefore,  Pfizer's  patents  are          invalid.     They, therefore,  seek to  obtain documents  and the          testimony  of  former  Pfizer  employees  who  were  involved  in          Pfizer's  transactions with  Ankerfarm.   In July  of  1991, they          filed  an ex  parte application  under  28 U.S.C.    1782  in the                    __  _____          United States District Court for the District of Maine requesting          a subpoena compelling  David W. Moriarty,  a retired employee  of                                         -5-          Pfizer  Inc., to  testify by  deposition and  produce documents.2          On July 24,  1991, Magistrate  Judge Cohen granted  the ex  parte                                                                  __  _____          application and the  subpoena was  issued.  On  August 12,  1991,          however,  Pfizer moved to quash the subpoena on the ground that a          private  party  invoking  a  district  court's  assistance  under          Section  1782 had  to  show that  the  requested information  was          discoverable  in  the foreign  jurisdiction.    In an  affidavit,          Pfizer's  general patent  counsel asserted  that the  information          sought  by the foreign companies  in fact would  not be available          and could not be used in the foreign proceedings.                      The foreign companies opposed Pfizer's motion by filing          affidavits from  foreign lawyers asserting that  the evidence was          obtainable in  each  country  if the  witness  was  found  there.          Pfizer responded with affidavits from foreign lawyers maintaining          that as a  general matter  there is no  pretrial availability  of                                        ____________________          2   The foreign  companies also filed  applications under Section          1782 to obtain the  testimony of other former and  present Pfizer          employees.   Specifically, the  foreign companies seek  to depose          two  former  Pfizer  employees,  Hermann  Faubl,  a  resident  of          Illinois,  and Thomas  Mott  Brennan, a  resident of  California.          Pfizer  credited these  men  with  being  the  inventors  of  the          patented process.  The  companies also seek to depose  two Pfizer          employees, Irving  Maurice Goldman and Barry  Malcolm Bloom, both          residents  of  Connecticut,  who  were  supervisors  in  Pfizer's          laboratory at the time the process in question.  In addition, the          foreign companies seek documents from Pfizer in New York.             On September 16, 1991, Pfizer moved before  the Judicial Panel          on  Multi-District  Litigation   to  consolidate  all   of  these          applications  in the  District of  Maine.  The  foreign companies          consented  to the consolidation.  On December 16, 1991, the panel          ordered the transfer of the four other proceeding to the District          of Maine on  the ground that  the Maine application was  the most          advanced.                                          -6-          information from non-party witnesses  in France, Belgium, England          and  the Netherlands.   Only  in an  extraordinary case,  where a          litigant has  obtained judicial  approval, may a  litigant compel          the testimony or production of documents of a non-party witness.                    On September  10, 1991, Magistrate  Judge Cohen granted          Pfizer's  motion to quash and  rescinded the July  24, 1991 order          issuing the subpoena.  The foreign companies sought review of the          Magistrate Judge's order before the district court.                       On May  22, 1992,  the district  court issued  an order          vacating  the  Magistrate  Judge's  decision   and  granting  the          application for an order  to take testimony and a  subpoena duces                                                                      _____          tecum.  In re Application of  Asta Medica, S.A., 794 F. Supp. 442          _____   _______________________________________          (D.Me. 1992).3   Pfizer appealed  and filed a  motion for a  stay          pending appeal.  We granted Pfizer's motion for  a stay and heard          the appeal on an expedited basis.                                          II                    The proceedings in Europe involve different parties and          patents and various  stages of prosecution.   Since a description          of  these proceedings is not  critical to the  resolution of this          appeal,  we provide  only  a limited  summary  of the  litigation          pending in each country.           A.  Proceedings in France           A.  Proceedings in France              _____________________                    In  1980, Pfizer  and  its French  subsidiary sued  the          French  applicant,  Laboratories  Sarget,  S.A.,  ("Sarget")  for                                        ____________________          3  The district court also permitted Hovione  Sociedade Quimicas,          S.A. ("Hovione") to join the litigation.  Pfizer has not appealed          this ruling.                                           -7-          patent infringement.  In  1988, the trial court ruled  that there          was no patent infringement.  In April of 1990, the Paris Court of          Appeal  overturned  that  ruling   and  appointed  an  expert  to          determine the damages  question.   An appeal filed  by Sarget  is          currently pending before the  Cour de Cassation, France's highest          court.                     Pfizer asserts that the validity or infringement of the          patent is  not at issue since the briefing stage of the appeal is          complete  and the authority of  the Cour de  Cassation is limited          only to issues of law.  The foreign companies argue that validity          of the patent is relevant to the damages issue.                    Pfizer  also sued  Hovione  for patent  infringement in          Lyon, France.  The trial court in Lyon found no infringement, and          Pfizer appealed.  The companies argue that the evidence sought is          pertinent because  Hovione is  asserting on appeal  that Pfizer's          patent is invalid.                          Finally, Sarget and one of its subsidiaries sued Pfizer          in  Bordeaux petitioning  the  court to  nullify Pfizer's  French          patent.4            B.  Proceedings in England          B.  Proceedings in England              ______________________                    Napp Laboratories, Ltd. ("Napp")  has filed a  petition          asking for the revocation of Pfizer's United Kingdom patents.                    According to  Pfizer, it has no  commercial interest in          the English patent and the patent "is already subject to licenses                                        ____________________          4   Neither  of  these other  two  proceedings was  mentioned  in          Pfizer's brief.                                         -8-          of right that can be obtained by anyone in England."  Appellant's          Brief at 12.  Pfizer asserts that Napp has brought a sham nullity          proceeding in  England to show  in the  Section 1782  application          that  there is a British  "proceeding."  Napp  argues that "[t]he          record  in   the  United   Kingdom  proceeding  is   also  open."          Appellees' Brief at 12.          C.  Proceedings in Belgium          C.  Proceedings in Belgium              ______________________                    Pfizer sued  Asta Medica,  S.A. ("Asta")  claiming that          Asta infringed  its Belgian  process patent.   The  Belgian court          referred   the  matter  to  a  panel  of  experts  who  found  no          infringement  of  Pfizer's patent.    Pfizer  is contesting  this          finding.          D.  Proceedings in the Netherlands          D.  Proceedings in the Netherlands              ______________________________                    A  dispute over an  application filed  by Pfizer  for a          Dutch patent is pending  before the Patent Council in  The Hague.          The application was  originally filed  by Ankerfarm  in 1973  and          assigned   to  Pfizer   by   Glaxo  Limited   Group,  a   British          pharmaceutical  firm, pursuant  to an  agreement dated  March 12,          1984.  Dagra,  BV ("Dagra") is opposing the grant  of the patent.          On September 10, 1988, Pfizer gave Dagra notice of its  intent to          sue for infringement upon issuance of its patent.                     Pfizer has also brought  a separate patent infringement          action  against Dagra in  Amsterdam.  This  proceeding is pending          before the district court in Amsterdam.                      Dutch law allows  a party  to file a  request with  the          court for  a  preliminary hearing  of  witnesses to  establish  a                                         -9-          factual basis to bring suit.  Dagra filed such a request in order          to  sue  Pfizer  under  Dutch  and  European  Economic  Community          antitrust  law for Pfizer's use of its patents.  Dagra identified          a number of witnesses in Europe and the United States.  The Dutch          trial  court denied the request for a preliminary hearing.  Dagra          appealed, but  before the Dutch  appellate tribunal ruled  on the          dispute, Pfizer mooted  Dagra's request by  waiving its right  to          enforce its patent in Holland against Dagra, any of its customers          and its supplier Hovione.                                          III                            The District Court's Decision                            The District Court's Decision                            _____________________________                    We ordinarily  review the district  court's decision to          grant the foreign  companies application under  28 U.S.C.    1782          for abuse of discretion.   See, e.g., In re Application Of  Malev                                     ___  ____  ___________________________          Hungarian Airlines, 964 F.2d 97 (2d Cir. 1992); In re Request for          __________________                              _________________          Assistance from Ministry of Legal Affairs of Trinidad and Tobago,          ________________________________________________________________          848 F.2d 1151, 1154 (11th Cir. 1988), cert. denied, 488 U.S. 1005                                                _____ ______          (1989).  Nevertheless, limitations imposed  by or implicit in the          statute  must control any exercise of discretion and in this case          we believe that such a limitation was disregarded by the district          court.                    The district court examined  the legislative history of          Section 1782 and  noted that  in amending Section  1782 in  1964,          Congress expanded  broadly "the power of federal courts to assist          foreign litigation."  In re Application of Asta Medica, S.A., 794                                ______________________________________          F.  Supp. at 445.  By the amendment, Congress (1) allowed private                                         -10-          litigants  and foreign courts for  the first time  to use Section          1782;  (2) expanded the authority  of federal courts  in order to          assist  in  obtaining documentary  evidence;  (3)  used the  term          "foreign tribunal" rather than "courts" to enlarge the assistance          beyond conventional  courts; and (4)  eliminated the  requirement          that litigation be pending before assistance may be granted.  See                                                                        ___          generally In re  Request for  Assistance from  Ministry of  Legal          _________ _______________________________________________________          Affairs of Trinidad and Tobago, 848 F.2d at 1153-54.            ______________________________                    Given the expansion in  discretion provided by the 1964          amendment to Section  1782, the district  court concluded that  a          rule  requiring an applicant to make a threshold showing that the          information sought  in the United  States is discoverable  in the          foreign  jurisdiction would limit judicial discretion excessively          and  would  place  an  "onerous  burden  on both  applicants  and          judges."  In re Application of Asta Medica, S.A., 794 F. Supp. at                    ______________________________________          445-46.  The district court reasoned as follows:                      There  is  absolutely   no  evidence   in                      [Section  1782], the  legislative history                      or the academic commentary explaining the                      statute's  enactment  that  suggests  any                      congressional   desire   to   impose   on                      American    courts    the    burden    of                      investigating foreign law on matters such                      as  admissibility  of  the evidence,  its                      discoverability  in  the American  or any                      other sense, or the authority  of foreign                      tribunals  to  order  such  testimony  or                      documents  in aid  of their  own judicial                      proceedings.    In  the  absence  of  any                      suggestion  that   Congress  intended  to                      impose  such  a  burden, and  given  that                      Congress  was  seeking to  liberalize the                                                 __________                      processes available  to foreign litigants                      seeking  evidence  here, I  conclude that                      resolution of these foreign law issues is                      not necessary  to the exercise of    1782                                         -11-                      discretion.          Id.  at 446.  The district court acknowledged holdings by several          ___          courts, including the Third and Eleventh Circuits, imposing  as a          requirement  that  the  district  courts  determine  whether  the          information  sought   here  was  discoverable   in  the   foreign          jurisdiction  prior  to  granting assistance.    Id.  at  446 n.9                                                           ___          (citing  In  re Request  for  Assistance from  Ministry  of Legal                   ________________________________________________________          Affairs of Trinidad and Tobago,  848 F.2d at 1156; Lo Ka  Chun v.          ______________________________                     ___________          Lo To, 858  F.2d 1564, 1566 (11th Cir. 1988);  John Deere Ltd. v.          _____                                          _______________          Sperry Corp.,  754 F.2d 132, 136  (3d Cir. 1985); In  re Court of          ____________                                      _______________          the Comm'r of Patents for Republic of South Africa, 88 F.R.D. 75,          __________________________________________________          77  (E.D.Pa. 1980)).    The district  court  inferred that  these          holdings  were  "based  upon   some  fear  of  offending  foreign          tribunals."   Id.   The court,  however, found  no merit  in this                        ___          concern with  offending foreign tribunals since  "Congress showed          no such fear . . . in  enacting a statute that does not depend on          reciprocity."   Id.     In  the district  court's view,  the only                          ___          inquiry required  under Section 1782 is  determining whether "the          subject  matter  is  generally  pertinent  and  [ensuring]   that          improper factors  such as harassment and  unnecessary expense and          delay are minimized."  Id.                                 ___                                         IV                      Public  Law No.  88-619, 78  Stat. 997  (1964), amended          various provisions of the United States Code dealing with foreign          and  international  litigation,  including  Section  1782.     By          adjusting the  United States judicial procedures  to provide more                                         -12-          "equitable  and   efficacious  procedures  for  the   benefit  of          tribunals and litigants involved in litigation with international          aspects,"  Congress  hoped  to  encourage  foreign  countries  to          revise their judicial  procedures similarly.   S. Rep. No.  1580,          88th Cong., 2d Sess. (1964), reprinted in 1964 U.S.C.C.A.N. 3782.                                       _________ __          The central intent of the 1964 amendments was to                      clarif[y] and  liberalize[] existing U.S.                      procedures  for   assisting  foreign  and                      international tribunals  and litigants in                      obtaining  oral and  documentary evidence                      in the  United States and  adjust[] those                                                 ______________                      procedures to the requirements of foreign                      _________________________________________                      practice and procedure.                      ______________________          Id.   at   3788  (emphasis   added).      The  district   court's          ___          interpretation of Section 1782 as changing the scope of discovery          available to litigants abroad contradicts these purposes.                     Under  the  district  court's ruling,  a  United States          party involved  in litigation in  a foreign country  with limited          pre-trial discovery will be  placed at a substantial disadvantage          vis-a-vis the  foreign party.   All the foreign party  need do is          file  a  request  for  assistance  under  Section  1782  and  the          floodgates  are open  for  unlimited discovery  while the  United          States party is  confined to restricted discovery  in the foreign          jurisdiction.   Congress  did  not amend  Section  1782 to  place          United States litigants in a more detrimental position than their          opponents when litigating abroad.  This result  would be contrary          to the concept of  fair play embodied in United  States discovery          rules and the notion that "[m]utual knowledge of all the relevant          facts   gathered  by   both  parties   is  essential   to  proper                                         -13-          litigation."  Societe Nationale Industrielle Aerospatiale v. U.S.                        ___________________________________________    ____          Dist. Court for  Southern Dist.,  482 U.S. 522,  540 n.25  (1987)          _______________________________          (quoting Hickman v. Taylor, 329 U.S. 495, 507 (1947)).                    _______    ______                    The   district  court's  holding  has  another  serious          shortcoming; foreign litigants may use Section 1782 to circumvent          foreign law and procedures.  The information sought under Section          1782  may not  be available  in the  foreign jurisdiction  due to          either  procedural  restrictions  or  the substantive  law.    In          amending Section 1782, Congress did not seek to place itself on a          collision course with  foreign tribunals and legislatures,  which          have carefully  chosen the  procedures and  laws best  suited for          their  concepts  of  litigation.    To  illustrate,  in a  purely          domestic  litigation in  a foreign jurisdiction  with restrictive          pre-trial  discovery  procedures,  a  litigant  may  request  the          foreign tribunal to issue  an order compelling the production  of          information located in the foreign jurisdiction.  If such request          is  denied  and the  same information  is  located in  the United          States, the litigant may side-step that result by racing here and          obtaining  the information  under Section 1782.   Not  only would          this  interpretation of  Section  1782 allow  a  litigant to  use          United  States law to gain an unfair advantage over its adversary          in  a purely  foreign litigation,  but more  importantly, foreign          countries may be offended  by the use of United  States procedure          to circumvent their own procedures and laws.                        In  order to avoid  offending foreign  tribunals, other          courts  have established, as a prerequisite to granting a request                                         -14-          for assistance  under Section 1782, a threshold  showing that the          information would be discoverable  in the foreign jurisdiction if          located there.   In re  Request for Assistance  from Ministry  of                           ________________________________________________          Legal  Affairs of  Trinidad and  Tobago, 848  F.2d at  1156 ("the          _______________________________________          district  court  must  decide   whether  the  evidence  would  be          discoverable in the foreign country before granting assistance");          Lo Ka Chun, 858 F.2d  at 1566 (remanding for determination  as to          __________          whether evidence sought  in the United States is  discoverable in          Hong  Kong);  John Deere  Ltd., 754  F.2d  at 136  ("Concern that                        ________________          foreign discovery provisions  not be  circumvented by  procedures          authorized in American courts  is particularly pronounced where a          request for assistance issues not from letters rogatory, but from          an  individual litigant"); In re  Court of the  Comm'r of Patents                                     ______________________________________          for Republic of South Africa, 88 F.R.D. at 77 ("Few actions could          ____________________________          more  significantly  impede   the  development  of  international          cooperation  among courts than if the courts of the United States          operated to give litigants  in foreign cases processes of  law to          which  they   were  not  entitled  in   the  appropriate  foreign          tribunals.").   See also  In  re Application  Of Malev  Hungarian                          ________  _______________________________________          Airlines, 964 F.2d 97  (2d Cir. 1992) (district court  abused its          ________          discretion  by  holding that  Section  1782  applicant must  seek          information first  in Hungarian  court when such  information was          readily discoverable pursuant to Hungarian procedure).                      The district  court, however, rejected  these decisions          since it found no  merit in these courts' concern  with offending          foreign  tribunals because "Congress showed no such fear . . . in                                         -15-          enacting a statute  that does not depend on  reciprocity."  In re                                                                      _____          Application of  Asta Medica, S.A., 794  F. Supp. at 444  n.9.  In          _________________________________          this  sense,  the district  court  confused  Congress' unilateral          decision  to broaden  the procedures  to obtain  evidence  in the          United States for use  abroad -- without regard to  whether other          nations  would reciprocate -- with  the concept of  comity.5  The          district court  apparently viewed  Congress' purported intent  in          amending Section  1782 as demonstrating an  absolute indifference          to international comity.  As  noted above, this interpretation of          the amendment  is flatly contradicted by  the legislative history          and the purported goals of Section 1782.                      United States discovery rules are far more liberal than          their foreign counterparts.   See, e.g.,  Boreri v. Fiat  S.P.A.,                                        ___  ____   ______    ____________          763  F.2d  17, 19  (1st Cir.  1985)  ("In [civil  law] countries,          discovery [United States]-style is often considered an affront to          the nation's  judicial sovereignty.").  Section  1782 was amended          to  provide  efficient   discovery  procedures  to  foreign   and          international litigants seeking information here and to stimulate                                        ____________________          5  International comity refers to                       the recognition which  one nation  allows                      within its territory to  the legislative,                      executive  or  judicial  acts of  another                      nation,   having   due  regard   both  to                      international  duty and  convenience, and                      to the  rights of its own  citizens or of                      other   persons   who   are   under   the                      protection of its laws.          Hilton v. Guyot, 159 U.S. 113, 163-64 (1895).          ______    _____                                         -16-          foreign countries to  follow the  lead of the  United States  and          liberalize  their own  procedure.   In  re  Application of  Malev                                              _____________________________          Hungarian  Airlines, 964 F.2d at 100.   Interpreting Section 1782          ___________________          as a congressional  mandate to  allow discovery as  long as  "the          subject matter  is generally pertinent,"  although such discovery          may  not be available in the  foreign jurisdiction -- in fact, it          might be prohibited --  would lead some nations to  conclude that          United  States  courts  view   their  laws  and  procedures  with          contempt.  In  this manner, the  broader goal of  the statute  --          stimulating cooperation in international and foreign litigation -          -  would  be  defeated   since  foreign  jurisdictions  would  be          reluctant to enact policies similar to Section 1782.                      The district  court refused  to  determine whether  the          information sought would be available under foreign law since, in          its  view, such an inquiry  placed "a severely  onerous burden on          both applicants  and judges."   Congress, however,  intended that          the primary  burden fall upon  the applicant, who  has to  make a          showing that  the information is discoverable  under foreign law.          We are in  no position to overrule Congress' policy  choice.  The          only burden  that would fall upon the district court is to make a          discovery  determination  based  upon   the  submission  by   the          parties.6    That is  hardly an  "onerous" burden.7   It  is true                                        ____________________          6   The district court  need not explore  whether the information          the applicants seek is admissible in  the foreign jurisdiction or          other issues  of foreign law.   See John Deere Ltd.,  754 F.2d at                                          ___ _______________          136; In  Re  Request for  Judicial  Assistance from  Seoul  Dist.               ____________________________________________________________          Criminal Court, 555 F.2d 720, 723 (9th Cir. 1977).           ______________                                         -17-          that Section 1782  "leaves the issuance  of an appropriate  order          [to compel the production  of evidence] to the discretion  of the          court which, in proper cases, may refuse to issue an order or may          impose conditions it  deems desirable."   Senate Report at  3788.          This discretion, however, is limited  by the restriction that  we          find  -- contrary  to  the district  court  -- to  be  implicitly          required by section 1782, based upon  its history, rationale, and          the policy considerations we have discussed.                                          V                    We  hold  that a  litigant requesting  assistance under          Section  1782  has to  show that  the  information sought  in the          United States would be discoverable under foreign law.                      Reversed and Remanded.                    _____________________                                                   ____________________          7   The  district  court may  find an  exceptional case  in which          determining  whether  the  information  is  discoverable  in  the          foreign  jurisdiction becomes an elusive  task.  In  such a case,          the  district court has various  options, among them,  to ask the          foreign  court  to help  it  decide  whether the  information  is          available in the foreign  jurisdiction, see In re  Application of                                                  ___ _____________________          Malev  Hungarian Airlines,  964 F.2d  at 102,  or to  request the          _________________________          assistance of  a  foreign  law  expert  to  clarify  whether  the          information is available or not.                                           -18-
