The case of the days BonSens.org v. Pfizer, Inc. (2d Cir. 2024). BonSens is an organization of “concerned scientists, medical doctors, legal experts and citizens.” It brought an action in France seeking to nullify an indemnification clause in an advance purchase agreement Pfizer and BioNTech, manufacturers of COVID vaccines, had made with the European Commission in November 2020. The Administrative Court of Paris dismissed the lawsuit in light of a choice of forum clause designating Belgium as the forum for disputes. BonSens appealed to the Paris Administrative Court of Appeal, which affirmed, and then to the Conseil d’État, which is still considering the case.

While the case was on appeal to the Administrative Court of Appeal, BonSens sought to obtain evidence in the US in aid of the French litigation, in particular, the communications between Albert Burl, Pfizer’s CEO, and Ursula von der Leyen, President of the European Commission, regarding the contract. The Court of Appeal denied the appeal before the US court ruled on the Section 1782 application. The US judge denied the application on the grounds that BonSens lacked “the practical ability” to use the evidence in the French proceedings and thus that the evidence was not sought “for use in” the French case, as the statute requires.

BonSens argued to the Second Circuit that the Conseil d’État would consider the evidence in the course of the French appeal, even though the appeal seemed to be purely focused on the question of the proper forum. The Second Circuit thought that unlikely: “Our review of the record indicates that the requested discovery is not relevant to the jurisdictional question that is currently on appeal to the Conseil d’Etat.” But no matter how plausible the Second Circuit’s conclusion, it wasn’t a sure thing, and I’m not sure I agree with what the Second Circuit did with that uncertainty. The court recognized that “The requested discovery could be relevant to the extent the Conseil d’Etat considers the merits of the dispute.” But it thought that there was no “objective basis” from which it could conclude that BonSens would win on the jurisdictional issue and that the Conseil d’État might reach the merits issue.

You can never know whether evidence that might be used will be used. That’s true even when the foreign case is still in the first-instance court. It seems to me the best way to avoid having to look too closely into the merits of the foreign case or having to “delve into a ‘battle-by-affidavit of international legal experts’” is simply to allow the applicant to take the evidence. If it can use the evidence, great, and if not, okay. That seems preferable to a rule that presumes that the US court knows how the foreign court is going to decide the foreign case.