The case of the day is In re Palladian Partners (S.D.N.Y. 2025). After Argentina’s 2001 sovereign debt crisis, the country issued new securities that provided for contingent payments based on the Argentine economy’s performance. Argentina did not make payments for 2013, arguing that the contractual conditions on its payment obligations hadn’t occurred. Palladian Partners and others, who together owned nearly half of the outstanding securities, sued Argentina and the Bank of New York Mellon, the indenture trustee, in the English High Court.

In 2023, the High Court entered a judgment in favor of the creditors. In 2023, the court issued “an order giving effect to its judgment.” That order was stayed until the exhaustion of Argentina’s appeals. Those appeals were exhausted in 2024, at which time the amounts owed became payable, without the need to bring a separate proceeding to enforce the judgment. The creditors took steps in England to obtain payment and also sought recognition of the English judgment in Washington. But in today’s case, they seek discovery under § 1782 in aid of the English proceedings. In particular, they seek discovery concerning the $LIBRA memecoin, which Argentina’s president had promoted and in which the Argentine government had in some way participated.

Is the English proceeding, which has already gone to judgment, “adjudicative,” as the Second Circuit had previously held is necessary? There are older cases holding that once a case goes to judgment, post-judgment proceedings to enforce the judgment are not adjudicative. But in Nigeria v. VR Advisory Services (2d Cir. 2022), the Second Circuit made it clear that an adjudicative proceeding that goes to judgment does not necessarily become nonadjudicative if it proceeds to enforcement. All that is necessary, under the newer cases, is that the enforcement proceeding must “involve factfinding or adjudication.” Here, the court found that the English court would have to consider factual and legal questions in order to decide on the various enforcement steps that the creditors said they planned to take. The court also rejected the argument that the English proceedings were not “in reasonable contemplation.” While the creditors may not have begun the particular enforcement steps they planned to take in England, they would take those steps under the banner of the existing lawsuit, without the need to file another case.

But the court went on to hold that the Intel factors did not support the application. The first factor weighed in favor of the application, because the target of the subpoena was not a party in the English case. The second factor weighed in favor, too, because the creditors argued that the English courts were receptive to evidence obtained via Section 1782 and the respondent offered nothing to meet its burden to show that the English court would reject the evidence. On the third factor, circumvention, the court correctly held that seeking to take the deposition of the respondent was not a problem even though the English courts do not generally allow depositions, because a mere difference in procedural rules is not the same as a rule that actively prohibits the use of Section 1782 or of particular discovery tools. But on the other hand, the court noted that the discovery sought far exceeded the issue of the ownership of assets and that the target of the subpoena “would not be the central source of relevant information.” It also noted that the creditors sought to seek to use theinformation obtained “to dteermine whether to initiate enforcement proceedings elsewhere.” All of that suggests that the creditors were “on a fishing expedition” and were “misusing the § 1782 device.”¹And the point about trying to decide where else to bring proceedings suggests that there is a problem with the statutory requirement that the evidence be “for use” in a foreign proceeding, though the court mentions but doesn’t delve into that point.

The breadth of the requests, and the extent to which they exceed the issue of Argentina’s ownership of property, was the key to the analysis of the fourth factor, reasonableness and undue burden, too. The court found that that factor also disfavored the application.

You might ask why the court didn’t blue-pencil the request.²I don’t know that US courts typically talk about “blue-penciling,” but the term, which we use to describe how a court revises a request under the Evidence Convention to conform it to the Convention’s limitations, is pretty handy. The Second Circuit has recommended that courts should revise subpoenas rather than simply denying an application outright. But according to the court, the document categories here—for example, “all documents and communications concerning media coverage or public relations related to $LIBRA, including crisis management strategies and social media posts”—were “so overbroad and divorced from Argentinian asset ownership that they could not be tailored to more relevant requests.” This is a helpful warning for counsel not to get greedy.

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  And the point about trying to decide where else to bring proceedings suggests that there is a problem with the statutory requirement that the evidence be “for use” in a foreign proceeding, though the court mentions but doesn’t delve into that point.
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  I don’t know that US courts typically talk about “blue-penciling,” but the term, which we use to describe how a court revises a request under the Evidence Convention to conform it to the Convention’s limitations, is pretty handy.