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U.S. Discovery For Assistance to Foreign and International Tribunals: Case Law Following Intel v. Advanced Micro Devices (Die US-amerikanische Discovery als Rechtshilfe für ausländische und internationale Tribunale)

Article

Recht der Internationalen Wirtschaft

April 2009

By: Terry MyersThomas R. ValenRechtsassessor Piet Weinreich

In RIW 2004, 899, we reported on the U.S. Supreme Court decision in Intel Corp. v. Advanced Micro Devices, Inc.1, clarifying the application of a statute regulating U.S. federal courts’ assistance to foreign and international tribunals and to litigants before such tribunals. In Intel, the Supreme Court held that the statute authorizes the institution of legal proceedings before U.S. courts for the sole purpose of allowing discovery for use in aid of proceedings outside of the U.S.2  We now report on more recent decisions further clarifying the application of this noteworthy statute. As the cases below show, the Intel factors have received substantial judicial scrutiny in the four years since the decision was issued. The new decisions also illustrate that U.S. courts still have discretion to allow discovery in aid of non-U.S. proceedings.

I. Introduction

U.S.C. §1782(a) gives participants in legal proceedings outside of the U.S. the alluring option of asking U.S. courts to allow them to engage in U.S.-style discovery to acquire materials for use in the non-U.S. proceeding. Section 1782(a) reads as follows:

“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. A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.”

The provision itself sets out three factors that have to be fulfilled in order for it to be applicable:

The application must be made towards (1) a person residing or to be found in the court’s district(2), for use in a proceeding in a foreign or international tribunal and the application must be (3) made by a foreign or international tribunal or by any person interested in the proceeding.

The Supreme Court in Intel ruled that Section 1782(a) does not contain a foreign “discoverability” rule and that, therefore, its application is not dependent upon whether the materials could be discovered under the laws of the foreign jurisdiction if the materials were located there.3  However, the Supreme Court held that even if the all three factors were met (thus giving a U.S. court the power to grant the application), U.S. courts would still have discretion as to whether to grant or deny the requested discovery. The Supreme Court held that this discretion should be exercised based upon the following questions:4

(1) Is the person from whom discovery is sought a participant in the foreign proceeding?

(2) What is the nature of the foreign tribunal and the character of the proceeding underway abroad, and is the foreign government or the court or agency abroad receptive to U.S. federal court assistance?

(3) Is the sole purpose of the Section 1782(a) request to attempt to circumvent foreign proof-gathering restrictions or policies?

(4) Is the request unduly intrusive or burdensome.

The manner in which lower courts have applied both the mandatory and discretionary factors subsequent to Intel is the subject of this article.

II. The Three Factor Test

1. Residency or found within the court’s district

Section 1782(a) requires that the respondent to the motion either resides or is found within the court’s district. The statue does not define what is meant by these terms. In Venturella, the Second Circuit found that “resides” can mean either residence or domicile, noting that these terms may have identical or variable meaning depending upon the nature of the subject matter of the statue in which they are used as well as the context in which the words are found.5  In the Intel case both parties were headquartered in the Northern District of California before which’s court the motion was originally filed, leaving the issue untouched. In subsequent cases courts have identified other circumstances that may meet the “resides or is found” requirement.

In In re Application of Nokia Corp. the plaintiff in a German patent proceeding requested discovery in the Western District Court of Michigan, claiming that the defendant could be found in that district.6  The plaintiff contended that the defendant had admitted that it had a place of business in the court’s district. The defendant, on the other hand, claimed that it only owned subsidiaries in the U.S. and that none of those were involved in the underlying case. The court ruled that owning subsidiaries in the district did not satisfy the “resides or is found” requirement, and therefore denied the plaintiffs motion.

In In re Kolomoisky7 the court found that the burden of proof for establishing that the respondent resides or is found within the court’s district lies with a petitioner.8  The petitioner argued that it met its burden because it demonstrated that the respondent’s wife and son were permanent residents in the district, and that a telephone line to their apartment was under the respondent’s name. Additionally the respondent’s passport showed that he had spent ten to twelve days in the U.S. in the relevant two months. However all of this did not satisfy the court. It ruled that under no definition of the word “resides” in Section 1782(a) could the evidence suffice to establish residency. According to the court this was especially so because even though his wife filed an individual tax return within the district the respondent did not.9 The court avoided the question whether the alternative statutory prong “found of” applied to a managing agent of an corporate entity based in the court’s district would be a suitable target in a Section 1782(a) proceeding in accordance with Rule 30(b)(1) of the Federal Rules of Civil Procedure on an evidentiary basis.10

In In re Oxus Gold PLC11 the district court found that petitioner presented sufficient evidence to establish that the respondent was “found” in the district where he leased a residential apartment in the district and stayed there for at least two months per year, owned a separate residential property in the district for more than 23 years, was registered to vote in the district, was a member of the state’s bar, used a business card that identified an address within the district as one of the office locations of his company, received personal and business calls in the district and maintained regular appointments with his physician who is located in the district.12  When considering application for discovery under Section 1782, the court advocated a flexible interpretation for the phrase ‘resides or is found.’13

In Intel the Supreme Court did not have to deeply analyze the issue of whether the party from whom discovery was sought resided or was found in the district. As the cases above show, post-Intel resolution of this issue remains a case by case matter.

2. For use in foreign tribunal proceeding

The second Section 1782(a) factor contains two requirements: First, Section 1782(a) requires that the U.S. court’s assistance is to be for use in the foreign proceeding. Second, it requires a proceeding before a foreign tribunal. Related to the latter are the questions concerning what a tribunal is (for example, does a private international arbitration constitute a tribunal under Section 1782?) and in what stage does the foreign proceeding need to be in. Each of these requirements have been subject to post-Intel litigation.

Regarding the “for use” requirement a litigated issue is whether the evidence retrieved through a Section 1782(a) motion needs to be admissible in the foreign proceeding in order to fulfill the “for use” requirement. The Supreme Court did not address this question in Intel; but the Southern District of New York Court stated in a recent case that the requirement “for use” is not limited to the actual receipt of materials by the foreign tribunal.14  In this case the respondents argued that the Mexican Court in which the underlying case was pending had ruled that it would not permit any further evidence. The District Court, however, ruled that with respect to Section 1782(a) it is sufficient that the evidence would be offered by the applicant – it was not necessary that the non-U.S. tribunal would accept the evidence. The Eastern District of New York Court stated in another case that Section 1782(a)’s for use provision does not contain an admissibility requirement.15  In that case a Russian Court had held that pursuant to Russian procedural rules the evidence that petitioner was seeking under Section 1782(a) in the absence of an order from the Russian court would not serve as due evidence. The U.S. court held that this would not prevent the granting of the motion. In a third case the Northern District of Illinois Court ruled that the “for use in” requirement in Section 1782(a) mirrors the language in Federal Rule of Civil Procedure 26(b) that for use means relevant to the claim or defense of any party, or more generally relevant to the subject matter involved in the foreign action. It is noteworthy, however, that the court expressly excluded from the standard the much broader provision in Rule 26(b)(1) allowing discovery in U.S. litigation of any evidence that appears reasonably calculated to lead to the discovery of admissible evidence.16

In Intel the Supreme Court found that the European Commission, although not a court in the classic sense, represented a kind of tribunal as it acts as a first-instance decision-maker in antitrust proceedings, and therefore qualified as a foreign tribunal within the meaning of Section 1782.17  Following that lead, the Southern District of New York in In re Microsoft has held that European Commission is a foreign tribunal in the sense of the statute.18

With regard to private international arbitration, courts have previously ruled that they do not satisfy the “tribunal” requirement.19  However, the court in In re Oxus Gold PLC held that private international arbitration can constitute a tribunal under Section 1782(a).20  In this case the arbitration between two private litigants was conducted within a framework governed by a Bilateral Investment Treaty and the Arbitration Rules of the United Nations Commission on International Trade Law. Whether In re Oxus Gold PLC marks the beginning of a new trend concerning the foreign tribunal requirement has yet to be seen. While reasoning that the private international arbitration constituted a foreign tribunal, the court stressed the special circumstances of the case at bar, particularly that the arbitration was authorized in a treaty.21  In this light it can be presumed that even after In re Oxus Gold PLC it is an open question whether a purely private international arbitration may or may not generally satisfy the tribunal requirement.

With regard to the stage in which the foreign proceeding must be in, the Supreme Court in Intel clarified that it does not need to be pending or even imminent. The only precondition the Supreme Court has made is that the proceeding must be within reasonable contemplation.22  In In re Pan Americano a Southern District of New York court further clarified with reference to the Second Circuit court’s decision in In re Ishihara Chemical Co. that it is not necessary that the foreign proceedings have reached the evidentiary stage.23

3. Interested Person

In Intel the Supreme Court held that “interested persons” includes more than litigants, foreign sovereigns and a sovereign’s designated agent. In addition to these persons, the statute may be invoked by any persons with some significant participation rights in the foreign proceeding.24  This ruling has not been narrowed by subsequent case law.

III. Discretionary factors

As noted above, Intel identified four discretionary tests:

1. Party in foreign proceeding

Intel clarified that if the respondent is a party to the foreign proceeding the need for Section 1782(a) aid generally is not as apparent as when evidence is sought from a non-participant.25  This is because the foreign tribunal has jurisdiction over the parties before it and therefore has the power to gather evidence, which may not be the case with non-parties to the proceedings. This reasoning has been followed in subsequent decisions.26  Thus, it often is easier to obtain evidence under Section 1782 from entities that are not parties to the non-U.S. proceeding that it is to obtain such evidence from parties. The question whether or not a corporation had to be regarded as a party in the foreign proceeding when its wholly-owned subsidiary was party to that proceeding was addressed in a case before the Northern District of Illinois.27  The respondent argued that where a wholly-owned subsidiary was a party to the proceeding, its parent should also be considered a party, and therefore the court should exercise its discretion and deny discovery as to the parent. The Northern District of Illinois rejected this argument, ruling that the two corporations were separate legal entities and that the fact that one was the sole shareholder of the other did not make it party to the subsidiary’s case.28

Two recent cases illustrate the limits of the Supreme Court’s statement and make clear that courts still have discretion to order Section 1782(a) discovery against entities that are parties to the non-U.S. proceeding. In In re Pan Americano the court ruled that a party to the underlying litigation may be subject to a Section 1782(a) action, if under the foreign jurisdiction’s law the tribunal cannot order the production of the requested documents.29  In In re Microsoft the court went even further, stating that the relevant question is actually not whether or not a person is party to the underlying proceedings but whether the evidence is available to the foreign tribunal.30  This last decision vividly reflects the broad applicability of Section 1782(a). As the concept of discovery is unknown to many countries with a civil law tradition, in a great number of non-U.S. proceedings discovery cannot be directed by the court. Nevertheless, U.S. courts may order that discovery can be obtained through a Section 1782(a) application, thus enlarging the applicant’s remedies and presenting a significant intrusion into the foreign civil procedure, limited only by the U.S. courts’ application of its discretion.

2. Nature of foreign proceeding

The Supreme Court in Intel31 stressed that the deciding court should take into account the receptivity of the foreign court to U.S. federal-court assistance and the nature, attitude and procedures of the foreign jurisdiction. In practice this discretionary factor often has proved to be of little weight, unless the foreign forum is expressly unreceptive to an American court’s intercession.32  Such express denial was found in Schmitz v. Bernstein Liebhard & Lifshitz, LLP, where the German Ministry of Justice explicitly objected to any disclosure of documents through discovery.33  In In re Microsoft,34 the petitioner sought the disclosure of documents held by the European Commission, and applied for assistance under Section 1782(a) before a U.S. district court. The European Commission opposed this motion stating that Microsoft’s rights of defense were adequately protected by the European Commission’s rules on access to file, and that the present application was an attempt to circumvent the established rules on access to file in proceedings before the Commission.35  The U.S. court agreed with the Commission’s position and rejected Microsoft’s application.

Intel made clear that whether evidence gathered under a Section 1782(a) action is or is not admissible in the foreign proceeding is a factor to be considered by the court in exercising its discretion as to whether or not to grant the discovery.36  However, in In re Grupo Qumma, where the disputing parties gave contradicting evidence as to whether the Mexican Court would admit the evidence sought through discovery, the court held that it was not up to district judges to try to glean the accepted practices and attitudes of other nations from what are likely to be conflicting and, perhaps, biased interpretations of foreign law. Accordingly, the court decided that the Section 1782(a) application should be granted and that it should be for the Mexican Court to decide whether the additional evidence is admissible, since it would be in a better position to do so.37

The Eastern District of New York Court stated in In re Imanagement citing the Second Circuit case of Euromepa S.A. v. R. Esmerian, Inc. that only authoritative proof that a foreign tribunal would reject evidence obtained with the aid of Section 1782(a) should be considered.38  In In re Gemeinshcaftspraxis another court ruled that an expert’s affidavit on this issue was not sufficiently authorative to deny discovery on this basis.39  Another court ruled that where it was “very likely” that the foreign tribunal would not accept the evidence, a motion for Section 1782(a) aid should be granted if the applicant intends to use the finding as a basis to identify relevant documents and other evidence.40  Based upon these decisions, it is unlikely that the receptivity of the non-U.S. tribunal to the assistance of U.S. courts will be a dispositive factor unless the non-U.S. tribunal expressly states that it does not want the U.S. courts’ assistance.

The court in In re Pan Americano suggested a different approach by comparing the foreign proceeding to similar U.S. proceedings. The court, after finding that the Venezuelan proceedings were clearly judicial in nature and did not differ in most respects from analogous legal proceedings in the United States in which the sought discovery would have been granted, deemed it compatible, especially since both countries had signed treaties facilitating judicial assistance.41

3. Circumvention

Another question that has been litigated since the Intel decision is whether Section 1782(a) contains an exhaustion requirement, meaning that the applicant must have exhausted all possibilities to acquire the evidence in foreign proceeding before turning to Section 1782(a). The argument in favor of exhaustion is that a prior motion may be viewed as a circumvention of the foreign evidence gathering proceedings. Intel did not explicitly address this issue, and the substance of the Supreme Court’s decision implicitly rejected such requirement. This has been the general tenor in subsequent decisions.42  However, the Court in In re Gemeinshcaftspraxis hinted that a critical reason it granted discovery under Section 1782(a) was that the application was the petitioner’s last resort to acquire discovery that was unable to be obtained abroad.43  The court also stated that it did not consider petitioner’s effort to constitute a circumvention of the foreign proof-gathering restrictions, as the foreign tribunal is free to protect any relevant policies by declining to admit any evidence gathered pursuant to means it deems unacceptable, thus maintaining it’s sovereignty over the case.44  Similarly, the court in In re Pan Americano did not perceive a Section 1782(a) motion as an attempt to circumvent foreign proof-gathering restrictions even though it was convinced that the evidence sought with the motion could not have been retrieved under the foreign proof-gathering rules. The court stated that it’s assistance merely helps to overcome a technical limitation of the foreign court’s rules.45

Another litigated question is whether the evidence sought by the Section 1782(a) motion must be physically present in the United States or if the statute’s reach spans to such evidence that is located abroad as well. Intel did not address the matter of evidence located abroad.46  Prior to Intel, courts had indicated that Section 1782(a) did not extend to documents located outside of the United States.47  In Norex Petroleum Ltd. v. Chubb Ins. Co. of Canada the plaintiff filed an application for discovery of defendants documents situated in the U.S. and abroad.48  The court held that it would be inappropriate for an U.S. court to allow discovery of documents located outside the U.S. under a Section 1782(a) motion. Although the statutory language does not indicate that discovery is limited to evidence that is located in the United States, the court reasoned that the statute’s background suggests such a limitation.49  In In re Godfrey the court also emphasized that the legislative history of the statute supports the notion that the statute was not intended to be used to compel production of documents located in a foreign country, as this would interfere with international courts and such broad application could turn American courts into clearing houses for requests for information from courts and litigants all over the world in search of evidence to be obtained all over the world.50

The court in In re Gemeinshcaftspraxis took a contrary position and allowed discovery of materials located outside of the U.S. The court ruled that Section 1782(a) requires only that the party from whom discovery is sought be found in the court’s district; not that the documents be found there.51  Motivated by the Supreme Courts declaration that Section 1782(a) should not be construed to include requirements that are not plainly provided for in the text of the statute, the court stated that the location of the documents should at most be considered with regard to whether the application should be denied for posing an undue burden on the respondent.52

3.4 Undue burden

The final discretionary factor identified by the Supreme Court, whether or not a discovery request presents an undue burden or is unduly intrusive, is to be determined on a case to case basis. Decisions under Section 1782(a) to date have not set out guidelines when an undue burden may be presumed. The court in In re Imanagement noted that this factor invites courts to address confidentiality concerns before discovery is permitted, and that such concerns may be a basis to limit discovery.53  Similarly, the court in In re Microsoft held that a discovery request would be unduly intrusive and burdensome where it seeks documents that may be protected as confidential by the foreign rules or that are privileged under U.S. law.54  On the other hand, the court in In re Gemeinshcaftspraxis held that it is not unduly burdensome that documents need to be translated so that they may be reviewed by an U.S. counsel.55  Perhaps most instructive with respect to this factor is that “undue burden” is a common and permitted basis to object to discovery requests in U.S. litigation. Thus, there is a well-developed body of case law in the context of more traditional discovery disputes that establishes when “undue burden” will be an effective basis to deny or limit discovery.

IV. Conclusion

Under U.S. common law principles, guiding U.S. Supreme Court pronouncements are given further definition by lower courts’ decisions. As above cases show, the Intel factors have received substantial judicial scrutiny in the four years since that significant decision was issued. Intel has channeled the discussion on the applicability of Section 1782(a), but Intel was not the last word on this subject. To the contrary, in In re Qwest56 the court expressly stated that the Supreme Court’s specifications in Intel are not exclusive and may therefore be amended by further factors. For example, that court considered, in addition to the factors identified by the Supreme Court, whether the documents were otherwise available to the petitioner, if the comity between the courts of the U.S. and the foreign country would be promoted by the action and whether the U.S. court’s decision would prejudice the rights of the concerned party as additional factors in its discretionary considerations. Thus, there remains ample room for creative lawyers to further shape and define the reach of Section 1782(a) and the ability of U.S. courts to allow discovery in aid of non-U.S. proceedings.


1 Intel Corp. v. Advanced Micro Devices, Inc., 124 S.Ct. 2466 (2004).

2 A description of the law prior to Intel and a detailed review of that decision can be found in Gibbons/Myers/Dolzer, “Zur Reichweite der US-Gerichte in internationalen Angelegenheiten”, RIW 2004, 899.

3 Intel Corp. v. Advanced Micro Devices, Inc., 124 S.Ct. 2466, 2480.

4 Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264.

5 United States v. Venturella, 391 F.3d 120, 125 (C.A.2 (N.Y.) 2004).

6 In re Application of Nokia Corp., 2007 WL 1729664 (W.D.Mich. 2007).

7 In re Kolomoisky, 2006 WL 2404332 (S.D.N.Y. 2006).

8 In re Kolomoisky, 2006 WL 2404332 *3 (S.D.N.Y. 2006); In re Godfrey, 526 F.Supp.2d 417, 419 (S.D.N.Y. 2007).

9 In re Kolomoisky, 2006 WL 2404332 *3 (S.D.N.Y. 2006).

10 In re Kolomoisky, 2006 WL 2404332 *3 (S.D.N.Y. 2006).

11 In re Oxus Gold PLC, 2007 WL 1037387 (D.N.J. 2007).

12 In re Oxus Gold PLC, 2007 WL 1037387 *3-4 (D.N.J. 2007).

13 In re Oxus Gold PLC, 2007 WL 1037387 *4 (D.N.J. 2007).

14 In re Application of Grupo Qumma, 2005 WL 937486 *2 (S.D.N.Y. 2005).

15 In re Imanagement Services Ltd., 2005 WL 1959702 (E.D.N.Y. 2005).

16 In re Application for an Order for Judicial Assistance in a Foreign Proceeding in the Labor Court of Brazil, 466 F.Supp.2d 1020, 1029 (N.D.Ill. 2006).

17 Intel Corp. v. Advanced Micro Devices, 124 S.Ct. 2466, 2479.

18 In re Microsoft Corp., 428 F.Supp.2d 188, 193 (S.D.N.Y. 2006).

19 Application of the Republic of Kazakhstan v. Biedermann Int’l, 168 F.3d 880, 883 (5th Cir. 1999); N.B.C., Inc. v. Bear Stearns & Co., Inc., 165 F.3d 184, 191 (2nd Cir. 1999).

20 In re Oxus Gold PLC, 2007 WL 1037387 *5 (D.N.J. 2007).

21 In re Oxus Gold PLC, 2007 WL 1037387 *4 (D.N.J. 2007).

22 Intel Corp. v. Advanced Micro Devices, 124 S.Ct. 2466, 2480.

23 In re Servicio Pan Americano de Proteccion, C.A., 354 F.Supp.2s 269, 273 (S.D.N.Y. 2004); In re Ishihara Chemical Co., 251 F.3d 120, 124 (2d Cir. 2001).

24 Intel Corp v. Advanced Micro Devices, 124 S.Ct. 2466, 2470.

25 Intel Corp v. Advanced Micro Devices, 124 S.Ct. 2466, 2483.

26 In re Application of Nokia Corp., 2007 WL 1729664 *5, (W.D.Mich. 2007).

27 In re Application for an Order for Judicial Assistance in a Foreign Proceeding in the Labor Court of Brazil, 466 F.Supp.2d 1020 (N.D.Ill. 2006).

28 In re Application for an Order for Judicial Assistance in a Foreign Proceeding in the Labor Court of Brazil, 466 F.Supp.2d 1020, 1031 (N.D.Ill. 2006).

29 In re Servicio Pan Americano de Proteccion, C.A., 354 F.Supp.2s 269, 274 (S.D.N.Y. 2004).

30 In re Microsoft Corp., 428 F.Supp.2d 188, 194 (S.D.N.Y. 2006).

31 Intel Corp v. Advanced Micro Devices, 124 S.Ct. 2466, 2483.

32 In re Application Sveaas, 249 F.R.D. 96, 107 (S.D.N.Y. 2008).

33 Schmitz v. Bernstein Liebhard & Lifshitz, LLP. (C.A.2 (N.Y.) 2004).

34 In re Microsoft Corp., 428 F.Supp.2d 188, 194 (S.D.N.Y. 2006).

35 In re Microsoft Corp., 428 F.Supp.2d 188, 192 (S.D.N.Y. 2006).

36 Intel Corp. v. Advanced Micro Devices, 124 S.Ct. 2466, 2483.

37 In re Application of Grupo Qumma, 2005 WL 937486 * 3 (S.D.N.Y. 2005).

38 In re Imanagement Services, Ltd., 2005 WL 1959702 *3 (E.D.N.Y. 2005); Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d 1095, 1100 (C.A.2 (N.Y.)1995).

39 In re Application of Gemeinshcaftspraxis Dr. Med Schottdorf, 2006 WL 3844464 *6 (S.D.N.Y. 2006).

40 In re Imanagement Services, Ltd., 2005 WL 1959702 *4 (E.D.N.Y. 2005).

41 In re Servicio Pan Americano de Proteccion, C.A., 354 F.Supp.2d 269, 274 (S.D.N.Y. 2004).

42 In re Imanagement Services, Ltd., 2005 WL 1959702 *5 (E.D.N.Y. 2005).

43 In re Application of Gemeinshcaftspraxis Dr. Med. Schottdorf, 2006 WL 3844464 *7 (S.D.N.Y. 2006).

44 In re Application of Gemeinshcaftspraxis Dr. Med. Schottdorf, 2006 WL 3844464 *7 (S.D.N.Y. 2006); In re Imanagement Services, 2005 WL 1959702 *5 (E.D.N.Y. 2005).

45 In re Servicio Pan Americano de Proteccion, C.A., 354 F.Supp.2d 269, 275 (S.D.N.Y. 2004).

46 Intel Corp. v. Advanced Micro Devices, Inc. 542 U.S. 241, 242.

47 In re Application of Sarrio S.A., 1995 WL 598988 (S.D.N.Y. 1995); Four Pillars Enters. Co. v. Avery Dennison Corp., 308 F.3d 1075 (9th Cir. 2002); Kestral Coal Pty. Ltd. v. Joy Global, Inc., 362 F.3d 401, 404 (7th Cir. 2004).

48 Norex Petroleum Ltd. v. Chubb Ins. Co. of Canada, 384 F.Supp.2d 45 (D.D.C. 2005).

49 Norex Petroleum Ltd. v. Chubb Ins. Co. of Canada, 384 F.Supp.2d 45, 50 (D.D.C. 2005).

50 In re Godfrey, 526 F.Supp.2d 417, 423 (S.D.N.Y. 2007).

51 In re Application of Gemeinshcaftspraxis Dr. Med. Schottdorf, 2006 WL 3844464 *5 (S.D.N.Y. 2006).

52 In re Application of Gemeinshcaftspraxis Dr. Med. Schottdorf, 2006 WL 3844464 *5 (S.D.N.Y. 2006).

53 In re Imanagement Services, 2005 WL 1959702 *6 (E.D.N.Y. 2005).

54 In re Microsoft Corp., 428 F.Supp.2d 188, 196 (S.D.N.Y. 2006).

55 In re Application of Gemeinshcaftspraxis Dr. Med. Schottdorf, 2006 WL 3844464 *8 (S.D.N.Y. 2006).

56 In re Qwest Communications Intern. Inc., 2008 WL 2741111 *5 (W.D.N.C. 2008).

57 In re Qwest Communications Intern, Inc., 2008 WL 2741111 *5 (W.D.N.C. 2008).