19-272 (L)
Sampedro v. Silver Point Capital, et al




                             United States Court of Appeals
                                For the Second Circuit

                                             August Term 2019

                                          Argued: January 16, 2020
                                           Decided: May 1, 2020

                                             Nos. 19-272, 19-273



                                      LUIS JAVIER MARTÍNEZ SAMPEDRO,

                                              Movant-Appellee,

                                                     v.

   SILVER POINT CAPITAL, L.P., CONTRARIAN CAPITAL MANAGEMENT, LLC, DAVID
                 REGANATO, NORMAN RAÚL SORENSEN VALDEZ,

                                           Respondents-Appellants.



                             Appeal from the United States District Court
                                   for the District of Connecticut
                              No. 18-mc-47, Janet Bond Arterton, Judge.


          Before:             KATZMANN, Chief Judge, HALL, AND SULLIVAN, Circuit Judges.
       Respondents-Appellants Silver Point Capital, Contrarian Capital
Management, David Reganato, and Norman Raúl Sorensen Valdez appeal from
an order of the United States District Court for the District of Connecticut (Janet
Bond Arterton, J.) denying their motion to compel reciprocal discovery under 28
U.S.C. § 1782. In light of the district court’s broad discretion under section 1782,
we conclude that a district court need not consider procedural parity with respect
to all possible foreign proceedings when determining whether to grant reciprocal
discovery. Therefore, we affirm the district court.

      AFFIRMED.

                                      DUANE L. LOFT (Andrew Villacastin, Mario De
                                      Oliveira Gazzola, on the brief), Boies Schiller
                                      Flexner LLP, New York, New York, for
                                      Respondents-Appellants Silver Point Capital, L.P.,
                                      Contrarian Capital Management, LLC and David
                                      Reganato.

                                      Jason C. Hegt, Eric L. Taffet, Latham &
                                      Watkins LLP, New York, New York, for
                                      Respondent-Appellant Norman Raúl Sorensen
                                      Valdez.

                                      VINCENT LEVY (Scott M. Danner, Kevin D.
                                      Benish, on the brief), Holwell Shuster &
                                      Goldberg LLP, New York, New York, for
                                      Movant-Appellee Luis Javier Martínez Sampedro.

RICHARD J. SULLIVAN, Circuit Judge:

      Respondents-Appellants      Silver       Point   Capital,   Contrarian    Capital

Management, David Reganato, and Norman Raúl Sorensen Valdez (together,

“Appellants”) appeal from an order of the United States District Court for the



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District of Connecticut (Janet Bond Arterton, J.) denying their motion to compel

reciprocal discovery under 28 U.S.C. § 1782 against Movant-Appellee Luis Javier

Martínez Sampedro (“Sampedro”). On appeal, Appellants argue that the district

court should have awarded them reciprocal discovery given their involvement

and interest not only in the foreign proceeding that formed the basis of Sampedro’s

section 1782 discovery request but also in another foreign proceeding where

Appellants are parties opposite Sampedro and where he could use the section 1782

discovery he obtained from Appellants. In light of the district court’s broad

discretion under section 1782, we conclude that a district court need not consider

procedural parity with respect to all possible foreign proceedings when

determining whether to grant reciprocal discovery. Therefore, we affirm the

district court.

       Sampedro and his brother, a non-party to this litigation, were executives at

Codere, S.A., a gaming company based in Spain. On February 9, 2018, the brothers

brought suit in the Commercial Court of Madrid seeking to annul a decision by

Codere’s Board of Directors terminating the brothers’ at-will employment

agreements (the “Spanish Litigation”). Codere is the only named defendant in that

action.   Ten days later, the brothers commenced an arbitration before the



                                         3
International Chamber of Commerce (“ICC”), likewise seeking to nullify the

Board’s decision (the “ICC Arbitration”). Appellants are all named respondents

in the ICC Arbitration.

      On April 20, 2018, pursuant to 28 U.S.C. § 1782, Sampedro filed an ex parte

application in the United States District Court for the District of Connecticut

requesting discovery from Appellants for use in the Spanish Litigation, which the

district court granted. Appellants moved to quash the resulting subpoenas, and

on October 30, 2018, the district court granted in part and denied in part those

motions.    Significantly, the district court denied Appellants’ request that

Sampedro be precluded from using the materials produced pursuant to the

subpoenas in the ICC Arbitration. The district court also denied Appellants’

request for reciprocal discovery because the request was not accompanied by a

“particularized argument for imposing reciprocity . . . [with] specification as to the

testimony or documents sought.” App’x at 426.

      On November 9, 2018, Appellants made more specific requests for

reciprocal discovery from Sampedro, and after a failed meet and confer,

Appellants formally moved to compel reciprocal discovery. That motion was

referred to Magistrate Judge Spector, who concluded that reciprocal discovery was



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not warranted because the “only foreign proceeding at issue” was the Spanish

Litigation, to which Appellants were not parties and in which they could not

submit evidence. App’x at 527. Appellants objected to the magistrate judge’s

order, but the district court overruled those objections. Specifically, the district

court concluded that the magistrate judge’s order was not clearly erroneous given

the broad discretion granted to district courts to determine if and when reciprocal

discovery is warranted. We agree.

       “We review the district court’s decision [under section 1782] for abuse of

discretion.” Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d 1095, 1097 (2d Cir. 1995). 1

Under section 1782, Congress gave district courts the authority to order a person

who resides or is found in the district to produce discovery in a foreign or

international proceeding. 28 U.S.C. § 1782. There are three specific statutory

requirements that first must be satisfied: “(1) the person from whom discovery is



1 The district court properly reviewed the magistrate judge’s order for clear error, see Fed.
R. Civ. P. 72(a), since the decision about whether to grant reciprocal discovery was
nondispositive, see Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990)
(“Matters concerning discovery generally are considered ‘nondispositive’ of the
litigation.”). In turn, our inquiry is whether the district court abused its discretion in
concluding that the magistrate judge did not clearly err or otherwise issue a decision
contrary to the law. But regardless of whether this review amounts to review for an
“abuse of discretion” or review for clear error, our conclusion remains the same.



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sought resides (or is found) in the district of the district court to which the

application is made, (2) the discovery is for use in a foreign proceeding before a

foreign or international tribunal, and (3) the application is made by a foreign or

international tribunal or any interested person.” Mees v. Buiter, 793 F.3d 291, 297

(2d Cir. 2015) (alteration and internal quotation marks omitted). If the statutory

requirements are met, a district court has discretion to grant discovery under

section 1782, so long as that discretion is exercised consistent with the purposes of

the statute. Id.

      The “twin aims” of section 1782 are to (1) “provid[e] efficient means of

assistance to participants in international litigation in our federal courts” and (2)

“encourag[e] foreign countries by example to provide similar means of assistance

to our courts.” In re Esses, 101 F.3d 873, 876 (2d Cir. 1996) (internal quotation marks

omitted). The Supreme Court has articulated a set of “non-exclusive” factors for

a court to consider when exercising its discretion to grant discovery under section

1782, such as “whether the person from whom discovery is sought is a participant

in the foreign proceeding,” the nature and circumstances surrounding the foreign

proceeding, whether the application “conceals an attempt to circumvent foreign

proof-gathering restrictions,” and “whether the request is unduly intrusive or



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burdensome.” Kiobel by Samkalden v. Cravath, Swaine & Moore LLP, 895 F.3d 238,

244 (2d Cir. 2018) (internal quotation marks omitted); see also Intel Corp. v. Advanced

Micro Devices, Inc., 542 U.S. 241, 264-65 (2004).

      The Supreme Court has also explained that “[w]hen information is sought

by an ‘interested person,’ a district court [can] condition relief upon that person’s

reciprocal exchange of information.” Intel Corp., 542 U.S. at 262. Consistent with

the Supreme Court, our cases permit a district court to order reciprocal discovery

to address any concerns about parity between the petitioner and respondent, but

we have never held that courts must do so. See, e.g., Euromepa S.A., 51 F.3d at 1102

(noting that “if the district court wished to insure procedural parity between” the

section 1782 petitioner and respondent “it could have conditioned relief upon the

parties’ reciprocal exchange of information.”) (emphasis added); In re Malev

Hungarian Airlines, 964 F.2d 97, 101-02, 102 n.4 (2d Cir. 1992) (noting that “[t]he

district court can, of course, accept [the petitioner’s] offer to engage in ‘reciprocal

discovery,’” but making clear that the district court was not required to supervise

such discovery). Rather than impose strict requirements on how a district court

should supervise discovery, section 1782 “entrusts to the district courts many

decisions about the manner in which discovery under the statute is produced,



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handled, and used.” In re Accent Delight Int’l Ltd., 869 F.3d 121, 134 (2d Cir. 2017).

A decision about whether to condition section 1782 discovery on reciprocal

discovery certainly falls within this broad grant of discretion. 2

      On appeal, Appellants contend that the district court should have upheld

their objection to the magistrate judge’s order because the magistrate judge

wrongly concluded that only the Spanish Litigation was relevant to the section

1782 application. The ICC Arbitration, they insist, is also relevant. To be sure, we

have held that section 1782 “does not prevent an applicant who lawfully has

obtained discovery under the statute with respect to one foreign proceeding from

using the discovery elsewhere unless the district court orders otherwise.” Id. at

135. We have further held that a district court may prevent the use of section 1782

discovery in foreign proceedings through a protective order. See id. For instance,

confronted with the possibility that “perversely incentivize[d] parties [would] . . .

institute sham litigation as a cover to obtain [s]ection 1782 discovery,” we held that

a party could present evidence to the district court that a section 1782 “applicant

is attempting to use foreign litigation as a ruse for obtaining discovery for use in



2 Notably, a district court need not view itself as solely responsible for ensuring parity
between parties to foreign disputes. As the Supreme Court noted in Intel, a “foreign
tribunal can [also] place conditions on its acceptance of the information to maintain
whatever measure of parity it concludes is appropriate.” Intel, 542 U.S. at 262.
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other foreign proceedings,” so the district court could decide whether there was

good cause for a protective order. Id. (internal quotation marks omitted). Here,

the district court declined to prevent Sampedro from using the discovery he

obtained for the Spanish Litigation in the ICC Arbitration, “given the absence of

evidence that [Sampedro’s] request for discovery for the Spanish Litigation is

merely a ruse for obtaining evidence to use in [that] Arbitration.” App’x at 427.

This conclusion was wholly justified. Moreover, it did not trigger an obligation

on the part of the district court to also consider the ICC Arbitration – which is

separate from the foreign proceeding that is the subject of the section 1782

application – when determining whether to grant reciprocal discovery.

      “[W]e previously have declined to read into [s]ection 1782 categorical

restrictions that lack textual support when district courts in their discretionary

review adequately can address the concerns raised.” In re Accent Delight Int’l Ltd.,

869 F.3d at 134. We therefore decline to read into section 1782 the obligation urged

by Appellants to consider all pending litigation. Nothing in the text of section 1782

even contemplates reciprocal discovery, let alone an obligation imposed on district

courts to consider proceedings which are not the subject of the section 1782

application. While Congress was certainly concerned with “procedural parity,” it



                                         9
trusted that district courts would decide the appropriateness of reciprocal

discovery. See Euromepa S.A., 51 F.3d at 1102. “[M]aintaining the balance between

litigants that each nation creates within its own judicial system” is “a legitimate

policy consideration” in granting section 1782 discovery, but “Congress intended

that [such] concerns be addressed by a district judge’s exercise of discretion.” In

re Gianoli Aldunate, 3 F.3d 54, 60 (2d Cir. 1993); see In re Esses, 101 F.3d at 876

(“Section 1782 grants district courts wide discretion to determine whether to grant

discovery and equally wide discretion to tailor such discovery to avoid attendant

problems.”). Congress also clearly intended to delegate to district courts the

discretion to “prescribe the practice and procedure” involved in discovery, 28

U.S.C. § 1782, which included an intent to allow a court to “impose conditions it

deems desirable.” In re Accent Delight Int’l Ltd., 869 F.3d at 134 (quoting S. Rep.

No. 88-1580 (1964), as reprinted in 1964 U.S.C.C.A.N. 3782, 3788).

      So long as a court fulfills its duty to fashion section 1782 discovery

consistent with the “twin aims” of the statute, we see no basis for announcing new

obligations under the facts presented here. We find nothing in the text, legislative

history, or purposes of section 1782 that commands a district court to consider all

foreign proceedings when granting or denying reciprocal discovery. Rather,



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Congress granted district courts broad discretion to grant or deny reciprocal

discovery.

      Perhaps understanding this broad discretion, Appellants also argue that

their interest in the Spanish Litigation alone justifies reciprocal discovery, and thus

the district court abused its discretion. Specifically, Appellants contend that the

magistrate judge created a bright-line rule that reciprocal discovery is only

available to parties to the foreign proceeding that was the subject of the section

1782 application. Here, of course, Appellants are not named parties to the Spanish

Litigation, though they maintain that they have a “substantial interest” in that

litigation as members of the Board and significant shareholders of Codere.

Appellants’ Br. at 15. But we do not view the magistrate judge – or district court’s

upholding of the magistrate judge’s order – as creating such a bright-line rule.

Instead, we see a permissible exercise of the court’s discretion to grant reciprocal

discovery. Put simply, it was not unreasonable for the court to consider whether

the party seeking reciprocal discovery would be able to use that discovery in the

foreign proceeding that was the subject of the section 1782 application. Cf. Certain

Funds, Accounts &/or Inv. Vehicles v. KPMG, LLP, 798 F.3d 113, 120 (2d Cir. 2015)

(concluding that non-parties to a foreign litigation are not entitled to discovery



                                          11
under section 1782 where they cannot establish “they are in a position to use the

evidence they seek” in those proceedings). 3 And, even assuming that Appellants

here may have been able to partake in the Spanish Litigation by virtue of their

affiliation with Codere, that does not compel the conclusion that they would be

entitled to reciprocal discovery here.

      In light of the high level of discretion given to district courts to determine

whether and under what circumstances reciprocal discovery is appropriate, we

conclude that the district court did not abuse its discretion. Accordingly, we

AFFIRM the judgment of the district court.




3 In making their argument, Appellants appear to read Judge Sweet’s decision in
Application of Consorcio Minero, S.A. v. Renco Grp., No. 11-mc-354 (RWS), 2012 WL 1059916,
(S.D.N.Y. Mar. 29, 2012), as binding authority. There, the district court found reciprocal
discovery appropriate because the applicant had a “substantial interest” in the relevant
actions. Id. at *4. While we take no issue with this reasoning, we do not view it as
mandatory, or an abuse of discretion to hold otherwise on the facts here.


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