is pending, stating in its entirety that "[i]f, in this litigation, documents from a US-American proceeding are attached to a written statement in the case file, the Court will take notice of this submission." Letter, dated February 25, 2003, from the Presiding Judge of the District Court of Frankfurt to Klaus Rotter. The next day, Cravath responded with another letter from the Presiding Judge that stressed that the first letter was "indeed no declaration that the Court supported — in opposition to other authorities of the Federal Republic of Germany — the production of such documents." Letter, dated March 4, 2003, from the Presiding Judge of the District Court of Frankfurt to Bernd-Wilhelm Schmitz.
Citing Metallgesellschaft, petitioners argue that the petition should be granted unless there is authoritative proof that the foreign tribunal would reject the Documents. There is indeed no "authoritative proof" that the German court would reject the Documents — there is simply a letter from the Ministry of Justice noting that granting the petition would invade German sovereignty rights and letters from the District Court of Frankfurt stating that it would take notice of the documents it is given but not declaring that it supported the granting of this petition.
However, petitioners misconstrue Metallgesellschaft. That case did not hold that the petition should be granted in the absence of authoritative proof that the foreign tribunal would reject the Documents. Rather, it stated that "a district court should not refrain from granting the assistance afforded" under section 1782 based simply on allegations that the foreign tribunal would reject the Documents. Metallgesellschaft, 121 F.3d at 80.
In addition, this is not a case where Germany can "easily protect itself from the effects of any discovery order by the district court that inadvertently offended [German] practices," Euromepa, 51 F.3d at 1101, since the fact of permitting petitioners to have access to the Documents may itself jeopardize the ongoing criminal investigation, as set forth in the Letter from the German Ministry of Justice.*fn2 See Ministry of Justice Letter at 1-2. Certainly, to grant the section 1782 petition in these circumstances would not effectuate the twin aims of the statute — providing efficient means of assistance to participants in international litigation and encouraging other countries by example to provide similar means of assistance to our courts. Rather, there is a significant chance that doing so would hinder the efforts of German prosecutors and courts and discourage German assistance to U.S. courts in later applications made in Germany.
It is worth noting that the German civil court "may request the production of documents from the public prosecutor," Stürner Decl. ¶ 5, but it has not, as of yet, made such a request. In these circumstances, it is difficult to perceive how providing for discovery "in order to aid a foreign court in doing what that court can readily do itself, but has chosen not to" would favorably prompt foreign courts to assist our courts in future actions. See Prof. Hans Smit Decl. In Opposition to the Petition ¶¶ 21-22. See also In re Sarrio S.A., 119 F.3d 143, 147 (2d Cir. 1997) (acknowledging the policy concerns expressed by Prof. Smit, who prepared the final version of section 1782).
2. Germany May Provide Petitioners Discovery of the Documents in the Future
Another factor this Court considers in denying the petition is that Germany has specifically left the door open for petitioners to obtain access to the Documents at some point in the future. See Ministry of Justice Letter at 2 ("[The public prosecutor has] not ruled out that the Public Prosecution Office will grant [petitioners] access to the files in connection with the German investigations at a later stage in the proceedings."); Bonn Letter ("[A]ccess can be granted at the earliest if and when the pieces of evidence have been made accessible for all criminal defenders.").*fn3
Considering (1) the specific requests by German authorities to not provide discovery, (2) the possibility of discovery of the Documents at a later juncture by petitioners, (3) the possible affront to German sovereignty; and (4) circumvention of German criminal procedure and the possibility of jeopardizing the ongoing German criminal investigation, among other factors, granting petitioner's application would not promote section 1782's aims. It would in fact encourage foreign countries to potentially disregard the sovereignty concerns of the United States and generally discourage future assistance to our courts. See Metallgesellschaft, 121 F.3d at 79.
For the foregoing reasons, the petition for discovery pursuant to 28 U.S.C. § 1782 should be denied.