The case of the day is Mees v. Buiter (2d Cir. 2015). This is the second significant appellate decision on § 1782 in a matter of days—I covered the new Posco case last week. Willem H. Buiter had made accusations against Heleen Mees that had led to her being arrested and charged with misdemeanors for stalking, menacing, and harassment in New York. Buster had claimed that 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.” He also claimed that her expressed wish that his “plane falls out of the sky” or her “sending him a picture of dead birds” caused him to fear for his safety. There were some racy bits too, which I won’t cover here. Because of the parties’ prominence—both are prominent economists, and Buiter coined the term “Grexit”—the case was covered in the press. The criminal case ended with an adjournment in contemplation of dismissal, contingent on Mees’s agreement to participate in counseling and to comply with an order of protection Buiter and his wife had obtained.

Mees brought a § 1782 application, 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.” The basis of Mees’s claim was that she wasn’t a stalker, but instead, she and Buiter had “regularly had romantic encounters.” She wanted discovery in order to corroborate her claim that she had met Buiter on twenty-seven “Romantic Encounter Dates.”

I can’t let the phase “Romantic Encounter Dates” pass without comment. I’m reminded of Jon Stewart’s comment on an interview Mitt Romney had given shortly after his defeat in the 2012 election. Romney had talked about the “open-space areas” where he liked to play with his grandchildren. Stewart’s comment:

“I’m not suggesting for a moment you don’t have a wonderful and warm relationship with your family and your grandchildren in these open-space areas,” Stewart said. “But you need to understand that we humans call them parks.”

Anyway, Buiter opposed the application. He argued that Mees did not have to have the discovery in order to plead her claim under Dutch law, and that because the discovery was not necessary in order to allow Mees to bring her claim, she was not seeking it “for use” in the prospective foreign proceeding. The district court denied Mees’s application, and she appealed.

On appeal, the court held that “for use” meant only that the discovery would “be employed with some advantage or serve some use in” the proceeding, not that the discovery was necessary. This seems right as a matter of plain language. The court also expressed a concern about the implications of imposing a necessity requirement—US courts would then be in the position of interpreting and analyzing the foreign substantive law, which they want to avoid doing if possible for reasons of economy and also relative lack of expertise. In other words, let the parties have their discovery and let the foreign court decide about its admissibility or usefulness.

The court noted that no Dutch proceedings had yet been commenced. But the statute expressly contemplates discovery in connection with foreign proceedings not yet commenced, and such discovery is permissible as long as the foreign case is “within reasonable contemplation.” Assuming Mees could plead her case without the discovery, as Buiter argued, there was no dispute that the discovery could be useful at trial.

The court remanded for an Intel analysis and it offered some guidance on the discretionary factors. One point that the court didn’t note but that I think important is the nature of the proposed Dutch case. It’s a claim for defamation that would face very steep and perhaps insurmountable hurdles in the United States, since it appears that the claim is not that Buiter himself published his allegations to anyone but the authorities, but rather that his “accusations were false and ‘foreseeably passed on to the media,’ and that republication of the accusations by the press” had caused injury. I’m not a New York lawyer, but I suspect that statements in a criminal complaint are privileged except in very limited circumstances. Presumably the Dutch law of defamation is more friendly to plaintiffs in a situation such as this. But in light of US public policy as expressed in the SPEECH Act, 28 U.S.C. §§ 4101-4105, should a US court provide aid to a foreign tribunal in a defamation case that clearly could not succeed if brought in the United States, without at least discussing the policy? I noted this issue in January 2014:

In the context of deciding whether the application was consistent with public policy, the judge noted that the First Amendment does not shield defamatory speech. Fair enough. But it would have been nice to have a discussion of the relevant differences between US and Canadian defamation law, and a consideration of the implications, if any, of the SPEECH Act for the issue. The SPEECH Act doesn’t say so, but I suppose one could think that if a foreign defamation judgment would be unenforceable in the United States, then as a matter of public policy the United States should not provide judicial assistance in the prosecution of the action.