TABLE OF AUTHORITIES - HLS Orgs



UNITED STATES COURT OF APPEALS FOR THE AMES CIRCUIT____________________________________________________________________Case No. 19-2062____________________________________________________________________In Re: Application of Arab Republic of Egypt,Appellant-Petitioner,v.Raiders and Associates, LLCAppellee-Intervenor,____________________________________________________________________BRIEF FOR THE Appellant-Petitioner____________________________________________________________________Attorneys for the Appellant-PetitionerTeam No. 32ATABLE OF CONTENTS TOC \o "1-4" \h \z \u TABLE OF AUTHORITIES PAGEREF _Toc22249975 \h iiiQUESTIONS PRESENTED PAGEREF _Toc22249976 \h 1STATEMENT OF THE FACTS PAGEREF _Toc22249977 \h 2STATEMENT OF JURISDICTION PAGEREF _Toc22249978 \h 3SUMMARY OF THE ARGUMENT PAGEREF _Toc22249979 \h 4ARGUMENT PAGEREF _Toc22249980 \h 5I.Since the District Court of Ames Possesses Specific Jurisdiction over Raiders, It May Order Discovery under §?1782. PAGEREF _Toc22249981 \h 5A.The Text of §?1782 Makes Clear that Specific Jurisdiction Satisfies the “Resides or is Found” Requirement. PAGEREF _Toc22249982 \h 51.The Plain Meaning of “Resides or Is Found” Makes Clear that Specific Jurisdiction Satisfies §?1782. PAGEREF _Toc22249983 \h 62.The Surplusage Canon Suggests Both “Resides” and “Found” Must Be Given Meaning. PAGEREF _Toc22249984 \h 73.The Whole-Text Canon Suggests that Congress Intended §?1782 To Encompass a Broad Understanding of Personal Jurisdiction. PAGEREF _Toc22249985 \h 74.Courts Have Consistently Read the Phrase “Resides or Is Found” To Encompass Specific Jurisdiction. PAGEREF _Toc22249986 \h 8B.Interpreting “Resides or Is Found” as Coextensive with Personal Jurisdiction Furthers the Purpose of § 1782. PAGEREF _Toc22249987 \h 9C.Section 1782’s Reliance on the District Judge’s Discretion Provides a Limiting Principle. PAGEREF _Toc22249988 \h 11II.Section 1782 May Be Used To Reach Documents Located Abroad. PAGEREF _Toc22249989 \h 11A.The Presumption Against Extraterritoriality Does Not Apply Because §?1782 Does Not Regulate Conduct. PAGEREF _Toc22249990 \h 12B.Even If the Presumption Against Extraterritoriality Applies, It Does Not Bar Discovery Here. PAGEREF _Toc22249991 \h 131.The Text and Purpose of the Statute Indicate that § 1782 Applies Extraterritorially. PAGEREF _Toc22249992 \h 142.This Case Involves a Domestic Application of § 1782. PAGEREF _Toc22249993 \h 16C.Section?1782 Does Not Raise Meaningful International Comity Concerns. PAGEREF _Toc22249994 \h 17CONCLUSION PAGEREF _Toc22249995 \h 18APPENDIX PAGEREF _Toc22249996 \h 19TABLE OF AUTHORITIES TOA \h \c "1" \p CasesAbuelhawa v. United States, 556 U.S. 816 (2009)8Advanced Micro Devices, Inc. v. Intel Corp., 292 F.3d 664 (9th Cir. 2002)15, 16Braun v. Berenson, 432 F.2d 538 (5th Cir. 1970)9Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 747 F.3d 1262 (11th Cir. 2014)5Daimler AG v. Bauman, 571 U.S. 117 (2014)10EEOC v. Arabian Am. Oil Co., 499 U.S. 244 (1991)12Hanson v. Denckla, 357 U.S. 235 (1958)7Heraeus Kulzer, GmbH v. Biomet, Inc., 633 F.3d 591 (7th Cir. 2011)4Hohn v. United States, 524 U.S. 236 (1998)7In re del Valle Ruiz, No. 18–3226, 2019 WL 4924395(2d Cir. Oct. 7, 2019)5, 11, 12, 14In re Edelman, 295 F.3d 171 (2d Cir. 2002)11, 12Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945)6Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004)passimJ. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873 (2011)5K Mart Corp. v. Cartier, Inc., 486 U.S. 281 (1988)7King v. Burwell, 135 S. Ct. 2480 (2015)9Kiobel v. Cravath, Swaine & Moore LLP, 895 F.3d 238 (2d Cir. 2018)16Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013)11, 12Mode Art Jewelers Co. v. Expansion Jewelry Ltd.,409 F. Supp. 921 (S.D.N.Y. 1976)9RJR Nabisco, Inc. v. Eur. Cmty., 136 S. Ct. 2090 (2016)passimSergeeva v. Tripleton Int’l Ltd., 834 F.3d 1194 (11th Cir. 2016)11, 14Smith v. United States, 507 U.S. 197 (1993)12Societe Internationale Pour Participations Industrielles EtCommerciales, S. A. v. Rogers, 357 U.S. 197 (1958)13, 15Thorburn v. Gates, 225 F. 613 (S.D.N.Y. 1915)9Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994)10Varsic v. U.S. Dist. Court for Cent. Dist. of Cal., 607 F.2d 245 (9th Cir. 1979)8WesternGeco LLC v. ION Geophysical Corp., 138 S. Ct. 2129 (2018)16, 17 TOA \h \c "2" \p Statutes15 U.S.C. §?15828 U.S.C. § 1291328 U.S.C. §?1400(a)928 U.S.C.?§ 1782passim29 U.S.C. §?1132(e)(2)8C.P.C. Art. 396–97.15Pub. L. No. 104–106, 110 Stat. 186 (1996)9Pub. L. No. 773, 62 Stat. 949 (1948)7 TOA \h \c "3" \p Other Authorities2 Cambridge Ancient History (I.E.S. Edwards et al. eds., 1975)2Convention on the Taking of Evidence Abroad in Civil and Commercial Matters,Mar. 18, 1970, 23 U.S.T. 2555, 847 U.N.T.S. 23115Oxford English Dictionary (3d ed. 2016)6S. Rep. 88–1580 (1964)10QUESTIONS PRESENTED28 U.S.C. § 1782 TA \l "28 U.S.C.?§ 1782" \s "28 U.S.C. § 1782" \c 3 authorizes “[t]he district court of the district in which a person resides or is found” to compel discovery “in accordance with the Federal Rules of Civil Procedure.” 1. May a district court compel discovery where it has specific jurisdiction, but not general jurisdiction, over a person?2. May a district court compel discovery of documents controlled by a United States company but stored in a foreign jurisdiction?STATEMENT OF THE FACTSOver three thousand years ago, the Pharaoh Akhenaten ruled over the New Kingdom of Egypt with his wife, Nefertiti. See 2 Cambridge Ancient History 53–56 (I.E.S. Edwards et al. eds., 1975) TA \l "2 Cambridge Ancient History (I.E.S. Edwards et al. eds., 1975)" \s "2 Cambridge Ancient History 53–56 (I.E.S. Edwards et al. eds., 1975)" \c 3 . This era produced one of the great artistic works of Egyptian history, a dual bust portrait of the two rulers that the Oxford Art Journal has characterized as “transcend[ing] age and epoch.” JA-4. In 2017, this portrait was unveiled in the British Museum in London, JA-4, and in March 2018, Egypt filed suit in the European Court of Human Rights to recover its lost heritage. JA-15.In discovery, Egypt obtained documents suggesting that the British Museum received the bust from an explorer known as Kentucky Jones and his company, Raiders and Associates, LLC (“Raiders”). JA-15. These documents indicated that Jones was present at a previously-sealed archeological ruin in the Egyptian desert when it was plundered in 1997, see JA-18, and that Jones gave the bust to the British Museum per an agreement between Raiders and the museum, JA-13.In December 2018, Egypt filed a petition in the District Court for the District of Ames to compel discovery under 28 U.S.C.?§ 1782 TA \s "28 U.S.C. § 1782" , JA-19, which authorizes “[t]he district court of the district in which a person resides or is found” to order that person to produce documents or other evidence for use in a “foreign or international tribunal,” 28 U.S.C. §?1782 TA \s "§ 1782" (a). Egypt requested “[a]ll communications” between “Jones or his companies and the British Museum concerning the acquisition of ancient artifacts” in Egypt. JA-19. Raiders is incorporated in New Mexico and headquartered in Hollywood, California, but it maintains an office in Ames City “out of which it planned and oversaw all operations to recover foreign artifacts.” JA-22. Raiders is a subsidiary of Raiders and Associates, Ltda. (“Raiders Worldwide”), a Brazilian company. All of the documents sought by Egypt were created in the United States, but are now stored in files maintained by Raiders Worldwide in Brazil. JA-22. As both parties have stipulated, the discretionary factors associated with the statute weigh in favor of granting discovery in this case and the requirements of §?1782 TA \s "§ 1782" are satisfied— provided that the district court has jurisdiction over Raiders, and that 28 U.S.C. §?1782 TA \s "28 U.S.C. § 1782" has extraterritorial application. JA-23. The district court denied Egypt’s motion to compel discovery. JA-11. The court found that it had specific jurisdiction over Raiders and concluded that specific jurisdiction was “enough to satisfy § 1782 TA \s "§ 1782" ’s ‘found’ requirement,” on the grounds that the provision “was designed to be interpreted broadly and to give district courts power and flexibility in assisting foreign courts.” JA-8. However, the district court found that §?1782 TA \s "§ 1782" did not have extraterritorial effect, concluding that the text and purpose of the statute suggested that the presumption against extraterritoriality should apply. See JA-9–JA-10. This timely appeal followed. See JA-24.STATEMENT OF JURISDICTIONThe District Court for the District of Ames possessed subject-matter jurisdiction over this case under 28 U.S.C. §?1782 TA \s "28 U.S.C. § 1782" . The district court denied Egypt’s petition for discovery on February 20, 2019, JA-12, and Egypt filed a timely notice of appeal the following day, JA-24. The Court of Appeals for the Ames Circuit possesses appellate jurisdiction over this case under 28 U.S.C. § 1291 TA \l "28 U.S.C. § 1291" \s "28 U.S.C. § 1291" \c 3 TA \s "§ 1782" . The denial of a motion to compel discovery under §?1782 is a final order subject to immediate appeal. See Heraeus Kulzer, GmbH v. Biomet, Inc., 633 F.3d 591, 593 (7th Cir. 2011) TA \l "Heraeus Kulzer, GmbH v. Biomet, Inc., 633 F.3d 591, (7th Cir. 2011)" \s "Kulzer, 633 F.3d" \c 3 (collecting cases). SUMMARY OF THE ARGUMENTThe district court correctly concluded that the phrase “resides or is found” in 28 U.S.C. §?1782 TA \s "28 U.S.C. § 1782" authorized the court to compel discovery so long as it possessed personal jurisdiction. Standard rules of statutory construction—most saliently, the statute’s plain meaning—show that the word “found” corresponds with specific personal jurisdiction. And the legislative history and structure of §?1782 TA \s "§ 1782" also make clear that the statute was designed to facilitate discovery in international proceedings and ought to be interpreted broadly to that effect. Section 1782 affords district courts broad latitude to allow or disallow a petition on a case-by-case basis—thus forestalling concerns of unfairness or hardship.The court erred, however, in finding that §?1782 TA \s "§ 1782" does not apply to documents located abroad. The presumption against extraterritoriality only applies to statutes that regulate conduct—not procedural statutes like §?1782 TA \s "§ 1782" . But even if the presumption does apply, it does not bar discovery here. Section?1782 explicitly allows discovery in accordance with the Federal Rules of Civil Procedure, which themselves apply extraterritorially. A broad application of the statute also reinforces its purpose—to provide far-reaching assistance in international litigation. And courts already have the tools to navigate the rare § 1782 case that implicates international comity. ARGUMENTThis court reviews questions of law, such as the district court’s construction of § 1782 TA \s "§ 1782" , de novo. See, e.g., Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 747 F.3d 1262, 1268 (11th Cir. 2014) TA \l "Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 747 F.3d 1262 (11th Cir. 2014)" \s "Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 747 F.3d 1262, 1268 (11th Cir. 2014)" \c 1 (“[W]e review de novo the district court’s interpretation of a federal statute like section 1782.”). Here, while the district court correctly interpreted the meaning of the phrase “resides or is found,” it incorrectly applied the presumption against extraterritoriality to bar discovery. Therefore, the district court’s decision should be reversed.Since the District Court of Ames Possesses Specific Jurisdiction over Raiders, It May Order Discovery under §?1782 TA \s "§ 1782" .Section?1782 provides that “[t]he district court of the district in which a person resides or is found may order him 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 TA \s "28 U.S.C. § 1782" (a). The statute’s plain meaning, interpretation by other circuits, and underlying purpose all suggest that specific personal jurisdiction satisfies the requirement that a person “resides or is found” in the district. Since the District Court of Ames possesses specific jurisdiction over Raiders, see JA-8 (citing J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 881 (2011) TA \l "J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873 (2011)" \s "J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 881 (2011)" \c 1 ), it may compel discovery under §?1782 TA \s "§ 1782" .The Text of §?1782 TA \s "§ 1782" Makes Clear that Specific Jurisdiction Satisfies the “Resides or is Found” Requirement.Only one appellate court has directly addressed the scope of the word “found” in §?1782 TA \s "§ 1782" . See In re del Valle Ruiz, No. 18–3226, 2019 WL 4924395, at *3 (2d Cir. Oct. 7, 2019) TA \l "In re Del Valle Ruiz, No. 18–3226, 2019 WL 4924395 (2d Cir. Oct. 7, 2019)" \s "In re Del Valle Ruiz, 2019 WL 4924395" \c 1 . That court declined to adopt a “cramped reading” of the statute requiring general jurisdiction and concluded instead that the statute “extends to the limits of personal jurisdiction consistent with due process.” Id. TA \s "In re Del Valle Ruiz, 2019 WL 4924395" This is the correct approach. Courts should give the word “found” its natural meaning, which encompasses specific jurisdiction. This reading of the statute is supported by its plain meaning, foundational canons of statutory construction, and courts’ interpretation of identical language in similar statutes.The Plain Meaning of “Resides or Is Found” Makes Clear that Specific Jurisdiction Satisfies §?1782 TA \s "§ 1782" .In cases of statutory construction, courts begin “with the language of the statute.” Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 255 (2004) TA \l "Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004)" \s "Intel, 542 U.S." \c 1 . Here, the language at issue is the phrase “resides or is found.”Reside means “to dwell permanently or for a considerable time” or to “have one’s settled or usual home in or at a particular place.” Reside, Oxford English Dictionary (3d ed. 2016) TA \l "Oxford English Dictionary (3d ed. 2016)" \s "Oxford English Dictionary (3d ed. 2016)" \c 3 . A friend who resides in a particular neighborhood, for instance, is someone we expect to be there when we return. Just so with general jurisdiction. A corporation is subject to general personal jurisdiction where the corporation’s affiliations with the forum state are “so ‘continuous and systematic’ as to render [it] essentially at home in the forum State.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 317 (1945) TA \l "Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945)" \s "Int’l Shoe, 326 U.S." \c 3 . The permanence suggested by “resides” thus corresponds with the “essentially at home” standard of general jurisdiction. Found, on the other hand, means that which is “come across or discovered by chance or as the result of searching or enquiry.” Found, Oxford English Dictionary (3d ed. 2016) TA \s "Oxford English Dictionary (3d ed. 2016)" . When departing a friend’s residence, they might suggest we say hello the next time we “find” ourselves in the neighborhood—precisely because we are not usually there. Just so with specific jurisdiction. A corporation may extend its reach beyond its principal place of business or its place of incorporation and “avai[l] itself of the privilege of conducting activities within” a certain forum, establishing specific jurisdiction. Hanson v. Denckla, 357 U.S. 235, 253 (1958) TA \l "Hanson v. Denckla, 357 U.S. 235 (1958)" \s "Hanson v. Denckla, 357 U.S. 235, 253 (1958)" \c 3 . The transience suggested by “found” thus corresponds with specific jurisdiction.The Surplusage Canon Suggests Both “Resides” and “Found” Must Be Given Meaning.Courts are “reluctant to adopt a construction making another statutory provision superfluous.” Hohn v. United States, 524 U.S. 236, 249 (1998) TA \l "Hohn v. United States, 524 U.S. 236 (1998)" \s "Hohn v. United States, 524 U.S. 236, 249 (1998)" \c 3 . Reading §?1782 TA \s "§ 1782" to require general jurisdiction would give meaning only to the word “resides,” leaving “found” either redundant or meaningless. After all, courts will have general jurisdiction precisely over people residing in their jurisdiction. Nor may the resulting surplusage dilemma be remedied simply by equating the word “found” with tag jurisdiction. The phrase “resides or is found” dates from 1948, see Pub. L. No. 773, 62 Stat. 949 (1948) TA \l "Pub. L. No. 773, 62 Stat. 949 (1948)" \s "Pub. L. No. 773, 62 Stat. 949 (1948)" \c 2 (codified as amended at 28 U.S.C. §?1782 TA \s "28 U.S.C. § 1782" ), three years after International Shoe established the modern system of “minimal contacts” personal jurisdiction; it would have been anachronistic for Congress to hinge the language of §?1782 TA \s "§ 1782" on an outdated theory of personal jurisdiction. If it is to mean anything at all, “found” must therefore correspond to specific jurisdiction.The Whole-Text Canon Suggests that Congress Intended §?1782 TA \s "§ 1782" To Encompass a Broad Understanding of Personal Jurisdiction.When determining the meaning of a statute, courts need not examine its text in isolation, but rather may look to “the language and design of the statute as a whole.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) TA \l "K Mart Corp. v. Cartier, Inc., 486 U.S. 281 (1988)" \s "K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988)" \c 1 . Here, the structure of §?1782 TA \s "§ 1782" as a whole indicates that the statute was understood to reflect a broad conception of personal jurisdiction. A district court may order a person who “resides or is found” in its district to give “testimony or [a] statement” or “produce a document.” 28 U.S.C. § 1782 TA \s "28 U.S.C. § 1782" (a). The statute also authorizes the court to “administer any necessary oath.” Id. These activities require only the incidental affiliation with a forum that is characteristic of specific jurisdiction, rather than the more permanent ties that would suffice to establish general jurisdiction. Given, then, that the phrase “resides or is found” authorizes activities that correspond to specific rather than general jurisdiction, the whole-text canon suggests that the meaning of that phrase should be understood to encompass specific jurisdiction. Courts Have Consistently Read the Phrase “Resides or Is Found” To Encompass Specific Jurisdiction.When interpreting statutes, courts “presume legislatures act with case law in mind.” Abuelhawa v. United States, 556 U.S. 816, 821 (2009) TA \l "Abuelhawa v. United States, 556 U.S. 816 (2009)" \s "Abuelhawa v. United States, 556 U.S. 816, 821 (2009)" \c 1 . Here, the case law has uniformly held—across several statutes using nearly identical language, and in several courts of appeals—that the phrase “resides or is found” is satisfied by specific jurisdiction.The Ninth Circuit, for instance, has interpreted 29 U.S.C. §?1132(e)(2) TA \l "29 U.S.C. §?1132(e)(2)" \s "29 U.S.C. § 1132(e)(2)" \c 2 —which provides venue in ERISA cases wherever “a defendant resides or may be found”—as providing that a corporate entity is found wherever “personal jurisdiction is properly asserted over [it].” Varsic v. U.S. Dist. Court for Cent. Dist. of Cal., 607 F.2d 245, 248 (9th Cir. 1979) TA \l "Varsic v. U.S. Dist. Court for Cent. Dist. of Cal., 607 F.2d 245 (9th Cir. 1979)" \s "Varsic v. U.S. Dist. Court for Cent. Dist. of Cal., 607 F.2d 245, 248 (9th Cir. 1979)" \c 1 . As the court noted, it was not alone in doing so—in fact, the court found it “significant” that the phrase “ha[d] been construed liberally when used in other venue provisions.” Id. TA \s "Varsic v. U.S. Dist. Court for Cent. Dist. of Cal., 607 F.2d 245, 248 (9th Cir. 1979)" For instance, it is “well-established” that the word “found” in 15 U.S.C. §?15 TA \l "15 U.S.C. §?15" \s "15 U.S.C. § 15" \c 2 , which provides for suit “in the district in which the defendant resides or is found or has an agent” authorizes jurisdiction over a corporation if it “continuously carries on any substantial part of its activities there.” Braun v. Berenson, 432 F.2d 538, 544 (5th Cir. 1970) TA \l "Braun v. Berenson, 432 F.2d 538 (5th Cir. 1970)" \s "Braun v. Berenson, 432 F.2d 538, 544 (5th Cir. 1970)" \c 1 . Likewise, the copyright venue provision, 28 U.S.C. §?1400(a) TA \l "28 U.S.C. §?1400(a)" \s "28 U.S.C. § 1400(a)" \c 2 , authorizing civil actions “in the district in which the defendant or his agent resides or may be found” has been read to establish venue “in any district in which personal jurisdiction might be obtained over” the defendant. Mode Art Jewelers Co. v. Expansion Jewelry Ltd., 409 F. Supp. 921, 923 (S.D.N.Y. 1976) TA \l "Mode Art Jewelers Co. v. Expansion Jewelry Ltd., 409 F. Supp. 921 (S.D.N.Y. 1976)" \s "Mode Art Jewelers Co. v. Expansion Jewelry Ltd., 409 F. Supp. 921, 923 (S.D.N.Y. 1976)" \c 1 . As these cases demonstrate, there has long been consensus in the federal courts that the word “found” is, insofar as consistent with due process, designed “to permit the plaintiff to sue the defendant wherever he could catch him.” Thorburn v. Gates, 225 F. 613, 615 (S.D.N.Y. 1915) TA \l "Thorburn v. Gates, 225 F. 613 (S.D.N.Y. 1915)" \s "Thorburn v. Gates, 225 F. 613, 615 (S.D.N.Y. 1915)" \c 1 (Hand, J.). Congress had every opportunity to change the language of § 1782 TA \s "§ 1782" if it wished to break with the judicial consensus—such as when it amended the statute in 1996. Pub. L. No. 104–106, 110 Stat. 186 (1996) TA \l "Pub. L. No. 104–106, 110 Stat. 186 (1996)" \s "Pub. L. No. 104–106, 110 Stat. 186 (1996)" \c 2 . This court should respect its decision not to do so.Interpreting “Resides or Is Found” as Coextensive with Personal Jurisdiction Furthers the Purpose of § 1782 TA \s "§ 1782" .Section 1782’s purpose, as revealed by its structure and legislative history, is to empower district courts to assist in international litigation and thereby encourage foreign nations to assist in U.S. litigation—a conclusion the Supreme Court has also reached when interpreting the statute. See Intel, 542 U.S. TA \s "Intel, 542 U.S." at 252.Courts often examine a statute’s overall structure, King v. Burwell, 135 S. Ct. 2480, 2492 (2015) TA \l "King v. Burwell, 135 S. Ct. 2480 (2015)" \s "King v. Burwell, 135 S. Ct. 2480, 2492 (2015)" \c 1 , and its legislative history, Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 209 (1994) TA \l "Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994)" \s "Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 209 (1994)" \c 1 , to determine its underlying purpose. Section?1782 authorizes—but does not require—a district court to compel discovery for use in an international proceeding. 28 U.S.C. §?1782 TA \s "28 U.S.C. § 1782" (a). This framework indicates that Congress wanted district courts to facilitate foreign proceedings, but to exercise their discretion in doing so. Similarly, the legislative history reveals that §?1782 TA \s "§ 1782" was intended “to improve U.S. judicial procedures for . . .?[o]btaining evidence in the United States in connection with proceedings before foreign and international tribunals.” S. Rep. 88–1580, at 1 (1964) TA \l "S. Rep. 88–1580 (1964)" \s "S. Rep. 88–1580" \c 3 . And the Supreme Court, analyzing the statute’s structure and legislative history, has likewise concluded that §?1782 TA \s "§ 1782" is Congress’s effort “over the span of nearly 150 years, to provide federal-court assistance in gathering evidence for use in foreign tribunals.” Intel, 542 U.S. TA \s "Intel, 542 U.S." at 247. Adopting the plain meaning of §?1782 TA \s "§ 1782" would thus further the statute’s purpose by empowering district courts to facilitate international litigation in a wider range of cases. Requiring that district courts possess general jurisdiction, by contrast, would narrowly cabin their authority. For instance, §?1782 TA \s "§ 1782" would practically never apply to a foreign corporation since it would neither be incorporated nor have its principal place of business in the United States. See Daimler AG v. Bauman, 571 U.S. 117, 139 (2014) TA \l "Daimler AG v. Bauman, 571 U.S. 117 (2014)" \s "Daimler, 571 U.S." \c 3 (articulating the same factors as the criteria for general jurisdiction). Such a reading is therefore at odds with Congress’s clear intent.Section 1782’s Reliance on the District Judge’s Discretion Provides a Limiting Principle.While §?1782 TA \s "§ 1782" should be understood to authorize discovery wherever a district court possesses personal jurisdiction, it does not mandate that a court compel discovery anytime it possesses jurisdiction: § 1782 says “may,” not “shall.” Instead, the statute leaves considerable discretion to the judge to decide whether to order discovery, even where the language of § 1782 would otherwise permit such an order. See Intel, 542 U.S. TA \s "Intel, 542 U.S." at 264. As courts have noted, this discretion serves as a key limiting principle to prevent abuse under §?1782 TA \s "§ 1782" . See In re Edelman, 295 F.3d 171, 179 (2d Cir. 2002) TA \l "In re Edelman, 295 F.3d 171 (2d Cir. 2002)" \s "In re Edelman, 295 F.3d 171, 179 (2d Cir. 2002)" \c 1 (“[A] district court can refuse to issue a § 1782(a) discovery order if the petitioner appears to be abusing the statute in this oppressive way.”). The safeguard of judicial discretion therefore ensures that courts may read “resides or is found” in a manner consistent with its plain meaning, statutory purpose, and interpretation by other courts without opening the statute to potential misuse.Section 1782 May Be Used To Reach Documents Located Abroad.While the Supreme Court has not yet ruled on whether § 1782 TA \s "§ 1782" applies to the discovery of documents located outside the United States, the only appellate courts to have ruled directly on this question have held that such documents are discoverable. See Sergeeva v. Tripleton Int’l Ltd., 834 F.3d 1194, 1200 (11th Cir. 2016) TA \l "Sergeeva v. Tripleton Int’l Ltd., 834 F.3d 1194 (11th Cir. 2016)" \s "Sergeeva, 834 F.3d" \c 1 ; In re del Valle Ruiz, No. 18-3226, 2019 WL 4924395, at *7 (2d Cir. Oct. 7, 2019) TA \l "In re del Valle Ruiz, No. 18-3226, 2019 WL 4924395, at *7 (2d Cir. Oct. 7, 2019)" \s "In re del Valle Ruiz, No. 18-3226, 2019 WL 4924395, at *7 (2d Cir. Oct. 7, 2019)" \c 1 . This court should follow suit and hold that § 1782 reaches documents located abroad.The Presumption Against Extraterritoriality Does Not Apply Because §?1782 TA \s "§ 1782" Does Not Regulate Conduct.The presumption against extraterritoriality does not govern every statute. Rather, the presumption is generally limited to statutes that impose liability for conduct. See Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 116 (2013) TA \l "Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013)" \s "Kiobel, 569 U.S." \c 1 (“We typically apply the presumption to discern whether an Act of Congress regulating conduct applies abroad.”). As § 1782 TA \s "§ 1782" governs procedure—not conduct—this court should not apply the presumption here. The distinction between conduct-regulating statutes and procedural statutes is grounded in the twin aims of the presumption: to help “avoid . . . international discord” and to interpret statutes in light of the “commonsense notion that Congress generally legislates with domestic concerns in mind.” RJR Nabisco, Inc. v. Eur. Cmty., 136 S. Ct. 2090, 2100 (2016) TA \l "RJR Nabisco, Inc. v. Eur. Cmty., 136 S. Ct. 2090 (2016)" \s "RJR Nabisco, 136 S. Ct." \c 1 (quoting Smith v. United States, 507 U.S. 197, 204 n.5 (1993) TA \l "Smith v. United States, 507 U.S. 197 (1993)" \s "Smith v. United States, 507 U.S. 197, 204 n.5 (1993)" \c 1 ). These concerns are at their apex when a statute imposes American norms on foreign conduct. See, e.g., EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 255 (1991) TA \l "EEOC v. Arabian Am. Oil Co., 499 U.S. 244 (1991)" \s "EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 255 (1991)" \c 1 (declining to “impos[e] this country’s employment discrimination regime upon foreign corporations operating in foreign commerce”). In contrast, because procedural and jurisdictional statutes do not trigger liability for conduct abroad, the presumption against extraterritoriality does not apply. See In re del Valle Ruiz, 2019 WL 4924395 TA \l "In re del Valle Ruiz, 2019 WL 4924395" \s "In re del Valle Ruiz, 2019 WL 4924395" \c 1 , at *7 (“The Supreme Court has never applied the presumption against extraterritoriality to a ‘strictly jurisdictional’ statute not otherwise tethered to regulating conduct or providing a cause of action.”) (quoting Kiobel, 569 U.S. TA \s "Kiobel, 569 U.S." at 116) (citation omitted).Since § 1782 TA \s "§ 1782" is merely procedural, the presumption does not apply. As the Second Circuit recently explained, the statute “is simply a discovery mechanism and does not subject a person to liability.” Id. TA \s "In re del Valle Ruiz, No. 18-3226, 2019 WL 4924395, at *7 (2d Cir. Oct. 7, 2019)" (quoting In re Edelman, 295 F.3d 171, 179 (2d Cir. 2002) TA \s "In re Edelman, 295 F.3d 171, 179 (2d Cir. 2002)" ) (declining to apply the presumption against extraterritoriality to § 1782). The Second Circuit’s conclusion accords with past precedent. For example, in Societe Internationale Pour Participations Industrielles Et Commerciales, S. A. v. Rogers, 357 U.S. 197 (1958) TA \l "Societe Internationale Pour Participations Industrielles Et Commerciales, S. A. v. Rogers, 357 U.S. 197 (1958)" \s "Rogers, 357 U.S." \c 1 , the Supreme Court held that Rule 34 of the Federal Rules of Civil Procedure enables litigants in American courts to subpoena documents under an adversary’s “control”—regardless of whether those documents are located in the United States or abroad. Id. at 204 TA \s "Rogers, 357 U.S." . Critically, though the documents in Rogers were located abroad, the Court’s inquiry into “control” made no mention of the presumption against extraterritoriality. See id TA \s "Rogers, 357 U.S." . Like Rogers, this case involves discovery procedure, not liability for conduct. And like Rogers, the presumption against exterritoriality does not bear on the correct interpretation of the statute.Even If the Presumption Against Extraterritoriality Applies, It Does Not Bar Discovery Here.In RJR Nabisco, the Supreme Court outlined a two-step framework for applying the presumption against extraterritoriality. 136 S. Ct. at 2101 TA \s "RJR Nabisco, 136 S. Ct." . First, the court asks whether the statue at issue contains “a clear, affirmative indication that it applies extraterritorially.” Id. TA \s "RJR Nabisco, 136 S. Ct." Second, the court asks whether the case involves a domestic or extraterritorial application of the statute. To do so, the court analyzes the “focus” of the statute. Specifically, if “the conduct relevant to the statute’s focus occurred in the United States,” the presumption against extraterritoriality never comes into play. Id. TA \s "RJR Nabisco, 136 S. Ct." Here, neither step is satisfied. The text, structure, and purpose of the statute evince Congress’s intent to apply § 1782 TA \s "§ 1782" extraterritorially. And, in any event, the relevant conduct here—the conduct central to the statute’s “focus”—occurred in the United States. The Text and Purpose of the Statute Indicate that § 1782 TA \s "§ 1782" Applies Extraterritorially.Congress has indicated its intent to apply § 1782 TA \s "§ 1782" extraterritorially. While a “clear, affirmative indication” of Congress’s intent to apply a statute abroad is required, “an express statement of extraterritoriality is not essential.” RJR Nabisco, 136 S. Ct. TA \s "RJR Nabisco, 136 S. Ct." at 2102. Rather, the Supreme Court has repeatedly emphasized that context should be consulted to determine whether a statute applies extraterritorially. See id. Taken as a whole, the text and structure of § 1782 clearly evince Congress’s intent to apply the statute to documents held abroad. See Sergeeva, 834 F.3d TA \s "Sergeeva, 834 F.3d" at 1200; In re del Valle Ruiz, 2019 WL 4924395, at *7 n.14. TA \s "In re Del Valle Ruiz, 2019 WL 4924395" In RJR Nabisco, the Supreme Court found that the incorporation by reference of other laws that applied extraterritorially was sufficient evidence to overcome the presumption against extraterritoriality. See 136 S. Ct. at 2101 TA \s "RJR Nabisco, 136 S. Ct." (finding that the Racketeer Influenced and Corrupt Organizations Act “rebutted” the presumption against extraterritoriality because it incorporated by reference “a number of [predicate felonies] that plainly apply to at least some foreign conduct”). Though Congress had not expressly stated that it intended the law at issue to apply extraterritorially, the Court found Congress’s explicit reference to other laws that apply extraterritorially to be a clear affirmative indication of Congressional intent. Id. at 2102 TA \s "RJR Nabisco, 136 S. Ct." .Likewise, § 1782 TA \s "§ 1782" plainly states that the district court may order a party to produce documents “in accordance with the Federal Rules of Civil Procedure.” 28 U.S.C. §?1782 TA \s "28 U.S.C. § 1782" (a). Federal courts have consistently held that the Federal Rules of Civil Procedure extend to the production of documents located outside the United States. See, e.g., Rogers, 357 U.S. TA \s "Rogers, 357 U.S." at 204–06. As in RJR Nabisco, Congress incorporated by reference into § 1782 a set of rules that expressly apply extraterritorially; this is a clear enough indication to rebut the presumption. See 136 S. Ct. at 2102 TA \s "RJR Nabisco, 136 S. Ct." .Further, the purpose of § 1782 TA \s "§ 1782" is best served by extending the statute to documents located outside the United States. The core aim of § 1782 is to provide “assistance to participants in international litigation.” Intel, 542 U.S. TA \s "Intel, 542 U.S." at 252 (quoting Advanced Micro Devices, Inc. v. Intel Corp., 292 F.3d 664, 669 (9th Cir. 2002) TA \l "Advanced Micro Devices, Inc. v. Intel Corp., 292 F.3d 664 (9th Cir. 2002)" \s "Advanced Micro Devices, 292 F.3d" \c 1 ). Denying litigants the ability to retrieve evidence controlled by Americans and stored abroad would impair this goal. First, because foreign tribunals have limited power to compel non-parties to produce documents and discovery regimes vary widely, effective international litigation requires an expansive interpretation of § 1782. This case is a perfect example. The European Court of Human Rights lacks the authority to compel non-parties outside of Europe to produce documents. JA–23. Thus, the only jurisdictions that can compel production here are the United States or Brazil, and the Brazilian civil discovery regime is far narrower than that of the United States. Second, by adopting a narrow reading of §?1782 TA \s "§ 1782" , this court would encourage prospective litigants to shift documents to hard-to-reach jurisdictions in order to escape discovery—even while allowing such parties to avail themselves of the United States’ relatively liberal discovery regime. Cf. Kiobel v. Cravath, Swaine & Moore LLP, 895 F.3d 238, 247 (2d Cir. 2018) TA \l "Kiobel v. Cravath, Swaine & Moore LLP, 895 F.3d 238 (2d Cir. 2018)" \s "Kiobel v. Cravath, Swaine & Moore LLP, 895 F.3d 238, 247 (2d Cir. 2018)" \c 1 (“In order to avoid potential disclosure issues under Section 1782, U.S. law firms with foreign clients may be forced to store documents and servers abroad.”). This Case Involves a Domestic Application of § 1782 TA \s "§ 1782" .Even if § 1782 TA \s "§ 1782" were limited to the United States, this court should grant Egypt’s motion to compel discovery. The second step of the RJR Nabisco framework looks to whether the conduct that is the “focus” of the statute occurs in the United States. WesternGeco LLC v. ION Geophysical Corp., 138 S. Ct. 2129, 2138 (2018) TA \l "WesternGeco LLC v. ION Geophysical Corp., 138 S. Ct. 2129 (2018)" \s "WesternGeco, 138 S. Ct." \c 1 . As the Court has explained, the statute’s focus “turn[s] on the ‘conduct,’ ‘parties,’ or interests that it regulates or protects.” Id. When, as here, the conduct relevant to the statute’s focus is domestic, questions of extraterritoriality never come into play.Section 1782 serves two interests: to “provid[e] efficient assistance to participants in international litigation,” and to “encourag[e] foreign countries by example to provide similar assistance to our courts.” Intel, 542 U.S. TA \s "Intel, 542 U.S." at 252 (quoting Advanced Micro Devices, 292 F.3d TA \s "Advanced Micro Devices, 292 F.3d" at 669). Here, the relevant conduct—“assistance” in litigation—is domestic conduct. The proposed discovery order requires an American company to produce documents created in the United States in accordance with this nation’s Federal Rules of Civil Procedure. Though the documents are located in Brazil, the conduct at the heart of the § 1782 TA \s "§ 1782" request—assistance with international litigation—is domestic conduct. The fact that compliance requires some activity in Brazil is irrelevant. As the Supreme Court has explained, if “‘the conduct relevant to the statute's focus occur[s] in the United States, then the case involves a permissible domestic application’ of the statute, ‘even if other conduct occur[s] abroad.’” WesternGeco, 138 S. Ct. TA \s "WesternGeco, 138 S. Ct." at 2137 (citing RJR Nabisco, 136 S. Ct. TA \s "RJR Nabisco, 136 S. Ct." at 2101) (emphasis added).Section?1782 Does Not Raise Meaningful International Comity Concerns. While the presumption against extraterritoriality is grounded in part in a desire to “avoid . . . international discord,” RJR Nabisco, 136 S. Ct. TA \s "RJR Nabisco, 136 S. Ct." at 2100, such concerns are inapplicable here. Nothing in the record indicates that Brazil objects to the production request. And since this order requires an American company to produce documents created in the United States, any objection is unlikely. Furthermore, because § 1782 TA \s "§ 1782" governs discovery and does not create liability, it is unlikely to generate meaningful comity concerns in the vast majority of cases. See supra, at p. 12–13.Still more, courts already have the tools to navigate the rare § 1782 TA \s "§ 1782" case that implicates international comity concerns. Section 1782 merely gives the district judge discretion to order discovery—it is not an inexorable command. And in Intel, the Supreme Court instructed lower courts to consider factors including “the receptivity of the foreign government,” “foreign proof-gathering restrictions,” and whether the request is “unduly intrusive or burdensome.” 542 U.S. at 264–65 TA \s "Intel, 542 U.S." . Though Intel was concerned with comity vis-à-vis the jurisdiction where the international tribunal is located (in this case, the European Court of Human Rights), the same principles may be used to analyze comity vis-à-vis the jurisdiction where the documents are located (in this case, Brazil). Intel emphasized the need for a case-by-case approach to comity rather than “categorical limitations” on § 1782; this court should do the same and conclude that § 1782 reaches documents located abroad. Id. at 255 TA \s "Intel, 542 U.S." .CONCLUSIONFor the foregoing reasons, Appellant respectfully requests that this Court reverse the judgment below and remand to the district court with instructions to grant the discovery petition.Respectfully submitted,Team 32AAPPENDIX28 U.S.C. §?1782 TA \s "28 U.S.C. § 1782" (a)The district court of the district in which a person resides or is found may order him 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, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure. ................
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