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A Better Specific Jurisdiction Test For Cross-Border Discovery

Mintz Member Gilbert Samberg authored this expert analysis article published by Law360 evaluating a federal statute concerning cross-border judicial assistance, Title 28, Section 1782 of the U.S. Code, which enables a district court to order a person that resides or is found within its jurisdiction to produce evidence for use in a proceeding in a foreign or international tribunal.

In Del Valle Ruiz, the U.S. Court of Appeals for the Second Circuit recently addressed two questions concerning the application of this unique legislation: (1) on what bases does a district court have personal jurisdiction over a nonparty for purposes of the statute (how does a court interpret and apply the resides or is found criteria in jurisdictional terms); and (2) can the district court order such a person to produce evidence that it maintains outside of the U.S.?

In the article, Mr. Samberg examines the court’s decision concerning the jurisdiction issue, which he argues is likely to have a more regular impact on the utilization of the Section 1782 discovery mechanism. In addition, he proposes a simpler test for specific personal jurisdiction over a nonparty for purposes of discovery that is more consistent with due process fairness.