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Mees v. Buiter

United States Court of Appeals, Second Circuit

July 17, 2015

HELEEN MEES, Applicant-Appellant,
v.
WILLEM H. BUITER, Respondent-Appellee.[*]

Argued May 6, 2015.

Applicant-appellant Heleen Mees appeals from a May 6, 2014 order of the United States District Court for the Southern District of New York (Loretta A. Preska, C.J.) denying her application to compel discovery from respondent-appellee Willem H. Buiter pursuant to 28 U.S.C. § 1782. The district court denied the application on the ground that the materials sought were not " for use" in a foreign proceeding, as required by § 1782, because they were not necessary for Mees to draft an adequate complaint. That conclusion was erroneous in two respects. First, an applicant may satisfy the statute's " for use" requirement even if the discovery she seeks is not necessary for her to succeed in the foreign proceeding. Second, the discovery need not be sought for the purpose of commencing a foreign proceeding in order to be " for use" in that proceeding. That is so even where the applicant is a private litigant who has yet to commence the foreign proceeding for which discovery is sought, so long as the proceeding is within reasonable contemplation. A § 1782 applicant satisfies the statute's " for use" requirement by showing that the materials she seeks are to be used at some stage of a foreign proceeding, and Mees has made such a showing.

OLAV A. HAAZEN, Grant & Eisenhofer P.A., New York, New York (Joshua J. Libling, Boies, Schiller & Flexner LLP, New York, New York, and Brooke A. Alexander, Boies, Schiller & Flexner LLP, Armonk, New York, on the brief), for Applicant-Appellant Heleen Mees.

ADRIENNE B. KOCH, Katsky Korins LLP, New York, New York (Joseph Weiner, Katsky Korins LLP, New York, New York, on the brief), for Respondent-Appellee Willem H. Buiter.

Before: LEVAL, LYNCH, and LOHIER, Circuit Judges.

OPINION

Gerard E. Lynch, Circuit Judge :

Applicant-appellant Heleen Mees appeals from a May 6, 2014 order of the United States District Court for the Southern District of New York (Loretta A. Preska, C.J. ) denying her application to compel discovery from respondent-appellee Willem H. Buiter pursuant to 28 U.S.C. § 1782. That statute permits a district court, " upon the application of any interested person," to order a person within its jurisdiction to " give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal." 28 U.S.C. § 1782(a).[1] In her application and at oral argument before the district court, Mees explained that she sought discovery from Buiter to plead and to prove a contemplated defamation suit against him in her home country, the Netherlands. The district court denied the application on the ground that the materials sought were not " for use" in the Dutch proceeding, as required by § 1782, because they were not necessary for Mees to draft an adequate complaint.

That conclusion was erroneous in two respects. First, an applicant may satisfy the statute's " for use" requirement even if the discovery she seeks is not necessary for her to succeed in the foreign proceeding. Second, the discovery need not be sought for the purpose of commencing a foreign proceeding in order to be " for use" in that proceeding. That is so even where a § 1782 applicant is a private litigant who has yet to commence the foreign proceeding for which discovery is sought, so long as the proceeding is within reasonable contemplation. A § 1782 applicant satisfies the statute's " for use" requirement by showing that the materials she seeks are to be used at some stage of a foreign proceeding. Mees has clearly made such a showing.

We therefore VACATE the order denying her application and REMAND for the district court to reconsider the application in light of our conclusion that Mees has satisfied the " for use" requirement of § 1782.

BACKGROUND

Mees's application arose after Buiter made certain accusations against her to law enforcement, causing her to be arrested and charged in New York State Court with five misdemeanor counts of stalking, menacing, and harassment. The charging Information included an affidavit from Buiter stating that, since 2009, 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. Buiter also stated that Mees's actions -- including wishing that his " plane falls out of the sky" and sending him a picture of dead birds -- caused him to fear for his safety. J.A. 72-73. The criminal complaint leading to Mees's arrest also contained an affidavit from a New York City Police Department detective reporting accusations against Mees made to him by Buiter. While the two affidavits are similar, the detective's affidavit included a number of sexually explicit allegations omitted from Buiter's affidavit. On March 10, 2014, Mees accepted an Adjournment in Contemplation of Dismissal in her criminal case, pursuant to which the charges would be dismissed in one year if Mees completed counseling and complied with an order of protection for Buiter and his wife.[2] Due largely to Buiter's position as a prominent business and academic economist, the case and its racy details were widely reported by the press in both New York and the Netherlands.[3]

Mees filed her § 1782 application on March 28, 2014, 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." J.A. at 7. The application asserted that Buiter's accusations were false and " foreseeably passed on to the media," and that re-publication of the accusations by the press had caused Mees to lose her job teaching economics at New York University, as well as other opportunities, and to suffer emotional harm. Id. at 7-8. The application maintained that Mees's interest in Buiter was not unrequited, and that in fact she and Buiter had " regularly had romantic encounters" dating back to 2008. Id. at 9, 19. To support this assertion of a consensual relationship, the application included as exhibits over a dozen emails between Mees and Buiter. It sought discovery primarily of a range of materials that would corroborate Mees's claims of having met Buiter on 27 " Romantic Encounter Dates." [4] Id. at 19.

Lastly, the application included a declaration of Mees's Dutch attorney regarding Dutch procedural law. It stated that, in Dutch proceedings, a plaintiff has a " 'duty to substantiate' the complaint" that is " particularly demanding, even among European 'fact pleading' systems." Id. at 108. The complaint is followed by the defendant's " statement of defense," after which a " plaintiff cannot presume to have an opportunity to supplement the facts" because " [t]here is no reply as of right." Id. at 110 (emphasis omitted). Thus, the declaration argued, it is important " to provide all information on the dispute at the beginning of the process." Id. at 109 (emphasis omitted). The declaration also stated that the Dutch courts were receptive to discovery assistance from U.S. courts via § 1782.

Buiter opposed Mees's application and submitted a competing declaration from his Dutch attorney regarding the requirements of Dutch law. That declaration stated that, contrary to the declaration of Mees's attorney, the Dutch pleading standard " is not particularly high." Id. at 190. It disputed Mees's argument that she needed to present all her evidence in the complaint, stating that " [t]he obligation to disclose the relevant evidence is . . . limited to the evidence that is known to the plaintiff." Id. at 188 (emphasis omitted). It concluded that Mees " does not need the information she has requested in order to file ...


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