Jurisdictional Discovery in the United States

In Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993), the Court held that, under “the Act, a foreign state is presumptively immune from the jurisdiction of United States courts; unless a specified exception applies, a federal court lacks subject-matter jurisdiction over a claim against a foreign state.”. In Cohens v. State of Virginia (19 U.S. 264, 399, 6 Wheat. 264, 399 (1821)) the Court concluded that it is “a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used.” Similarly, in Armour & Co. v. Wantock(323 U.S. 126, 132-33 (1944)), the Court said that “words of . . . opinions are to be read in the light of the facts of the case under discussion . . . . General expressions transposed to other facts are often misleading.”

In NML Capital, the Court held (134 S. Ct. at 2258 n. 6) that, although “this appeal concerns only the meaning of the Act, we have no reason to doubt that . . . other sources of law ordinarily will bear on the propriety of discovery requests of this nature and scope, such as . . . the discretionary determination by the district court whether the discovery is warranted, which may appropriately consider comity interests and the burden that the discovery might cause to the foreign state.” The Supreme Court cited Société Nationale Industrielle Aérospatiale v. USDC (482 U.S. 522, 543-44, and n. 28 (1987)) sayind that factors relevant to “any comity analysis” include “(1) the importance to the . . . litigation of the documents or other information requested; (2) the degree of specificity of the request; (3) whether the information originated in the United States; (4) the availability of alternative means of securing the information; and (5) the extent to which noncompliance with the request would undermine important interests of the United States, or compliance with the request would undermine important interests of the state where the information is located.”

In Société Nationale, the Supreme Court also stated:

“American courts, in supervising pretrial proceedings, should exercise special vigilance to protect foreign litigants from the danger that unnecessary, or unduly burdensome, discovery may place them in a disadvantageous position. Judicial supervision of discovery should always seek to minimize its costs and inconvenience and to prevent improper uses of discovery requests. When it is necessary to seek evidence abroad, . . . the district court must supervise pretrial proceedings particularly closely to prevent discovery abuses. . . . Objections to “abusive” discovery that foreign litigants advance should therefore receive the most careful consideration. In addition, we have long recognized the demands of comity in suits involving foreign states, either as parties or as sovereigns with a coordinate interest in the litigation. American courts should therefore take care to demonstrate due respect for any special problem confronted by the foreign litigant on account of its nationality or the location of its operations, and for any sovereign interest expressed by a foreign state.”

Steven R. Swanson, Jurisdictional Discovery Under the Foreign Sovereign Immunities Act, 13 Emory Int’l L. Rev. 445, 457-58 (1999) (“[I]t has not always been clear whether the FRCP permit jurisdictional discovery. After all, before jurisdiction has been established a court technically lacks power to order discovery.”); cf. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 n.13 (1978) (indicating that discovery is available with respect to jurisdictional issues, without distinguishing between personal jurisdiction and subject matter jurisdiction); Insurance Corporation of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701-03 (1982) (distinguishing subject matter jurisdiction from personal jurisdiction); see also, e.g., United States v. Sherwood, 312 U.S. 584, 589-90 (1941) (holding that the rules of civil procedure do not “modify, abridge or enlarge the substantive rights of litigants or . . . enlarge or diminish the jurisdiction of federal courts”); Am. Telecom Co., L.L.C. v. Republic of Lebanon, 501 F.3d 534, 538-39 (6th Cir. 2007) (“Courts are constituted by authority and they cannot [go] beyond the power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities. They are not voidable, but simply void, and this even prior to reversal.”); Rolls Royce Indus. Power (India) v. M.V. Fratzis M. Stratilatis Navigation Ltd., 905 F. Supp. 106, 107 (S.D.N.Y. 1995) (declining to order discovery in the absence of subject matter jurisdiction).

FSIA Counsel

In Mare Shipping Inc. v. Squire Sanders (US) LLP, No. 13-4426-CV, — Fed. Appx. —, 2014 WL 3733133 (2d Cir., July 30, 2014), the Second Circuit concluded that the FSIA does not preclude discovery requests targeting a foreign state’s counsel in the United States. Relying on Rep. of Argentina v. NML Capital, Ltd., — U.S. —, 134 S.Ct. 2250, 2256, (2014), the court said that the FSIA’s “explicit definition” of a “foreign state,” by “its plain text, excludes a foreign sovereign’s U.S. counsel.” Mare Shipping, 2014 WL 3733133, at *3.

Monetary Contempt Sanctions in FSIA Case

On January 24, 2014, United States District Judge Richard M. Berman found the Republic of Iraq, the Ministry of Industry of the Republic of Iraq, and the attorneys for the Republic and the Ministry in contempt of court for failure to comply with a discovery order dated August 29, 2012. Servaas v. Republic of Iraq, Case No. 09 Civ. 1862(RMB), 2014 WL 279507 (S.D.N.Y. Jan. 24, 2014). The court held that the “sanction imposed upon Iraq is $2,000 per day effective Friday, January 24, 2014, and continuing for each day that Iraq continues to fail to comply with the Discovery Order.”

Main Elements of a Claim Under § 1605A FSIA

Application of § § 1605A FSIA to prior suits

According to research about Jurisdictional Discovery from the Federal Judicial Center:New cases filed after the effective date of the new statute (January 28, 2008) must be considered on that basis alone. However, § 1605A was intended to have at least some retroactive effect. The specific provisions are complicated.330 If a party had filed a claim, but did not obtain relief under the previous statute (§ 1605(a)(7)), the party could claim the benefits of new § 1605A by filing a motion to convert its pending case to a new action under § 1605A.331 These have been called “prior actions.” The deadline for filing them was 60 days after the effective date of the statute, that is, March 28, 2008. Alternatively, plaintiffs whose actions had been timely commenced under the prior statute and were pending or had gone to judgment when the new provision went into effect were permitted to refile under § 1605A under certain circumstances. These suits have been termed “related actions.”332 Plaintiffs relying on the “related action” provision must have sought the benefits of the new statute not later than sixty days after the date of the entry of judgment in the original action or January 28, 2008, whichever was later.333 Taylor v. Islamic Republic of Iran334 is a recent example of a related action. The immediate family members of eight U.S. servicemen killed in the 1983 bombing of the Marine barracks in Beirut had sued Iran, alleging that it had not only created and supported the terrorist organization Hezbollah but also directed it to conduct the attack. As the Taylor court noted, the incident spawned a “lengthy history of litigation,” leading to several prior judgments under the previous version of the state-sponsored terrorism exception. 335 Because the new action was filed within sixty days after entry of judgment in one of the prior cases, it qualified as a “related action” and § 1605A could be applied retroactively to the plaintiffs’ claim for relief. The extent to which a court may take judicial notice of prior findings of fact in related proceedings before the same court has been addressed in several decisions. In Oveissi v. Islamic Republic of Iran, for example, Chief Judge Lamberth said that “a FSIA court may ‘take judicial notice of related proceedings and records in cases before the same court.”Note: FSIA is the acronym of the Foreign Sovereign Immunities Act of 1976.

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Procedural and Evidentiary Issues in the Foreign Sovereign Immunities Act of 1976

Immunity from Prosecution

According to research about Jurisdictional discovery from the Federal Judicial Center:The complaint itself should contain sufficient factual allegations for this purpose.49 The court must review those allegations as well as any undisputed facts presented by the parties. While the FSIA aims to protect foreign sovereigns and their agencies and instrumentalities from not only liability but also discovery and other burdens of litigation, limited jurisdictional discovery may be allowed.50 The most widely stated standard specifies that discovery must be ordered “circumspectly and only to verify allegations of specific facts crucial to the immunity determination.”51 Absent specific facts providing a “reasonable basis for assuming jurisdiction,” jurisdictional discovery may be refused.52 Courts generally recognize two competing interests here: on the one hand, allowing plaintiffs sufficient discovery to establish that their causes of action fall within the statutory exceptions to immunity and, on the other hand, protecting the defendants’ legitimate claim to immunity, including from discovery. Thus, jurisdictional discovery should be permitted only if it is possible that the plaintiff could demonstrate the requisite jurisdictional facts sufficient to constitute a basis for jurisdiction and it should not be allowed when discovery would be futile [and] . . . only if the plaintiff presents non-conclusory allegations that, if supplemented with additional information, will materially affect the court’s analysis with regard to the applicability of the FSIA.53 Whether the FSIA applies to discovery requests directed at nonparties that may be entitled to immunity is a question of apparent first impression. One recent decision authorized issuance of letters rogatory to a foreign court requesting production of documentary and testimonial evidence from a foreign governmental instrumentality despite the latter’s claims of immunity.54 Note that § 1605(g) provides special rules regarding discovery requests against the U.S. government in an action filed under the state-sponsored terrorism exception in § 1605A. These rules are discussed in the terrorism addendum in Part VII infra. In brief, § 1605(g) requires the court, upon request of the Attorney General, to stay any request, demand, or order for discovery on the United States that the Attorney General certifies would significantly interfere with a criminal investigation or prosecution, or a national security operation, related to the incident that gave rise to the cause of action, until such time as the Attorney General advises the court that such request, demand, or order will no longer so interfere.55 In addition to various time limits and other limitations, § 1605(g)(4) states that “a stay of discovery under this subsection shall constitute a bar to the granting of a motion to dismiss under rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure.”

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