Case of the Day: Banca Pueyo v. Lone Star Fund IX
Posted on November 2, 2020
The case of the day is Banca Pueyo S.A. V. Lone Star Fund IX (US), LP (5th Cir. 2020). The case addresses an important point about § 1782 procedure, namely, when a decision is sufficiently final to permit an appeal. I preface the discussion by saying that if you find yourself in a § 1782 appeal, you’re probably not where you want to be. If you’re the applicant appealing, the time available in the foreign proceeding for offering evidence may be short enough that an appeal can’t give you effective relief. If you’re the respondent appealing, you probably need to make a pretty good showing in order to get a discovery order stayed pending appeal. As in any other litigation, the time and expense are good reasons to work out as much as you can with your adversary.
In today’s case, The respondent filed a motion to quash, which the district court denied on the grounds that the respondent hadn’t identified any specific requests that were overly burdensome; but the judge said that the respondent could renew the motion after conferring with the applicant. The respondent appealed the denial of its motion and the court’s order granting the ex parte application. Then the respondent filed its second motion to quash, which the court granted in part and denied in part, all while the appeal was pending.
The court dismissed the appeal for lack of jurisdiction. It was pretty obvious that the denial of the first motion to quash was not a final decision, given that the judge explicitly invited another motion to quash. Still, the court’s discussion about 1782 appeals is useful. The court noted that in most circuits, the rule is that a 1782 decision has to be final to be appealable, and it observed that “no court has exercised appellate jurisdiction over a section 1782 case when a motion to quash that might limit the scope of discovery remained pending in the trial court. Rather, courts have allowed appeals only after the district court had ‘affirmatively decided the proper scope of discovery.'” The Fifth Circuit, on the other hand, has not applied the finality rule, but rather treated a 1782 as a collateral order and asked whether it is the kind of collateral order that should be immediately appealable even though not final. It’s possible for courts to disagree about how to characterize 1782 proceedings, as the Fifth Circuit disagrees with other courts, because a 1782 case is not a civil action that results in a judgment; it is sui generis. Even under the collateral order analysis, though, the denial of the first motion to quash was not appealable because it was not conclusive on the matter it addressed. It left room for a second order.