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Journal of Private International Law Volume 7, 2011 - Issue 1
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Original Articles

Jurisdictional Discovery in Transnational Litigation: Extraterritorial Effects of United States Federal Practice

Si Strong PhD (law), University of Cambridge; DPhil, University of Oxford; JD, Duke University; MPW, University of Southern California; BA, University of California, Davis. The author, who is admitted as an attorney in New York and Illinois and a solicitor in England and Wales, is Associate Professor of Law at the University of Missouri and Senior Fellow at the Center for the Study of Dispute Resolution. The author gratefully acknowledges generous fi nancial support from the University of Missouri Law School Foundation during the drafting of this article as well as helpful comments made by anonymous reviewers during the submission process. All errors of course remain the author's own.
Pages 1-31 | Published online: 07 May 2015

  • See PR Dubinsky, “Is Transnational Litigation a Distinct Field? The Persistence of Exceptionalism in American Procedural Law” (2008) 44 Stanford Journal of International Law 301, 303–06.
  • See S Dodson, “Comparative Convergences in Pleading Standards” (2010) 158 University of Pennsylvania Law Review 441, 444–47; TO Main, “The Procedural Foundation of Substantive Law” (2010) 87 Washington University Law Review 801, 837 (noting that states “may be more likely to consider abandoning their own substantive regimes of commercial law or intellectual property…than they would surrender their own procedure”). Recent efforts to establish an internationally acceptable system of transnational civil procedure have not found widespread success. See ALI/UNIDROIT, Principles of Transnational Civil Procedure (Cambridge University Press, 2006), xxix, xxxviii–xxxix (noting impact of the ALI/UNIDROIT Principles in Mexico); OG Chase et al (eds), Civil Litigation in Comparative Context (St Paul, MN, Thomson Westw, 2007), 574–75 (noting the ALI/UNIDROIT Principles have not yet been adopted by any national court).
  • Eg some states may be concerned that departing from the status quo will harm individuals or businesses resident in their territories. See GB Born, “Critical Observations on the Draft Transnational Rules of Civil Procedure” (1998) 33 Texas International Law Journal 387, 408, 410–11.
  • See Dubinsky, supra n 1, 306 (suggesting US courts look at international disputes as a variant on interstate litigation).
  • See KM Clermont and JRB Palmer, “Exorbitant Jurisdiction” (2006) 58 Maine Law Review 474, 474–75 (noting that lawyers “tend to overlook their own countries' excesses” and suggesting that some states justify their own national practices on the grounds that other states' procedural practices are equally discriminatory to non-residents).
  • See WD Brazil, “Civil Discovery: Lawyers' Views of Its Effectiveness, Its Principal Problems and Abuses” [1980] American Bar Foundation Research Journal 787, 797 (conducting empirical research and noting overexposure to problematic practices dulls perception of impropriety); WD Brazil, “The Adversary Character of Civil Discovery: A Critique and Proposals for Change” (1978) 31 Vanderbilt Law Review 1295, 1343 (concluding judges are equally susceptible to acculturation).
  • Dubinsky, supra n 1, 306.
  • Dodson, supra n 2, 444–45.
  • For a discussion of how US practices regarding jurisdiction and evidence-gathering compare to those of other countries, see D Epstein et al, International Litigation: A Guide to Jurisdiction, Practice, and Strategy (St Paul, Thomson West, 2nd edn, 2008), ss 1.01, 3.02; JW Bolt and JK Wheatley, “Private Rules for International Discovery in US District Court: The US–German Example” (2006) 11 UCLA Journal of International Law and Foreign Affairs 1, 5–6; Dubinsky, supra n 1, 306. Because jurisdictional discovery involves issues of both personal and subject-matter jurisdiction, it implicates both prescriptive jurisdiction (ie legislative jurisdiction), which can be described as a nation's ability “to make its law applicable to the activities, relations, or status of persons“, as well as judicial jurisdiction, which can be described as a nation's authority to “subject persons or things to the process of its courts or administrative tribunals” and to “induce or compel compliance…with its laws or regulations”, Restatement (Third) of Foreign Relations Law s 401 (1986); see also R Michaels, “Two Paradigms of Jurisdiction” (2006) 27 Michigan Journal of International Law 1003, 1057–61 (comparing US and Europea n concepts of extraterritorial jurisdiction); E Reuveni, “Extraterritoriality as Standing: A Standing Theory of the Extraterritorial Application of the Securities Laws” (2010) 43 UC Davis Law Review 1071, 1096–103 (noting that cases have traditionally confl ated the question of legislative jurisdiction with subject matter jurisdiction, although that analytical approach may be changing).
  • Jurisdictional discovery is most commonly ordered against putative defendants, but it can be requested of plaintiffs and third parties as well. This article focuses exclusively on discovery orders directed at named defendants, since those cases are more frequent and the issues are somewhat different than those concerning non-parties and plaintiffs. See eg Linde v Arab Bank, PLC 262 FRD 136, 145 (EDNY 2009) (distinguishing discovery against a litigant and a non-party); In re Baycol Products Litigation 348 F Supp 2d 1058, 1060 (D Minn 2004).
  • See SI Strong, “Jurisdictional Discovery in United States Federal Courts” (2010) 67 Washington and Lee Law Review 489, 492–94 (discussing why research has been limited). The author has recently undertaken a detailed analysis of jurisdictional discovery in the domestic US context, but commentary is sparse in this area of law. The few existing scholarly works include J Anderson, “Toys ‘R’ Us, the Third Circuit, and a Standard for Jurisdictional Discovery Involving Internet Activities” (2003) 9 Boston University Journal of Science and Technology Law 471; KM Clermont, “Jurisdictional Fact” (2006) 91 Cornell Law Review 973; Strong, supra; JEC, Note, “Use of Discovery to Obtain Jurisdictional Facts” (1973) 59 Virginia Law Review 533. Limited references are made to jurisdictional discovery in GB Born and PB Rutledge, International Civil Litigation in United States Courts (New York, Aspen Publishers, 4th edn, 2007), 992–94. Internationally oriented analysis by US commentators has been limited to cases involving foreign sovereigns. See SR Swanson, “Jurisdictional Discovery Under the Foreign Sovereign Immunities Act” (1999) 13 Emory International Law Review 445; JM Terry, Comment, “Jurisdictional Discovery Under the Foreign Sovereign Immunities Act” (1999) 66 University of Chicago Law Review 1029.
  • The device has been scarcely discussed outside the US. See eg RG Blum, “American Courts and Foreign Litigants: Should American Discovery Rules Apply When a Foreigner Challenges an American Court's Jurisdiction?” (2000) 11 International Company and Commercial Law Review 114; EP Gay, “Obtaining Evidence in England: The Role of US Counsel” (1997) 5 International Insurance Law Review 249.
  • Although jurisdictional discovery also takes place in state courts, this discussion focuses solely on US federal law for reasons of space. However, similarities between state and federal codes of evidence and civil procedure mean that standards regarding the scope and availability of jurisdictional discovery in state court are in many cases roughly analogous to standards in federal court (exceptions will of course exist). See infra n 126. Notably, no US state appears to have taken the view that jurisdictional discovery, as a basic principle, is not available in its courts, even though some states (including Nebraska, Oklahoma and South Dakota) do not appear to have explicitly considered the device. To some extent, state courts are less likely to need jurisdictional discovery as much as federal courts do, since state courts are courts of general jurisdiction dealing primarily with state and local matters. Although parties from other countries and US states may be named as defendants in these courts, many non-residents will attempt to remove those actions to federal court, since federal courts are believed to treat parties from distant locales more neutrally than state courts. This would, of course, have the result of bringing the question of jurisdictional discovery back to the federal context. Interestingly, one court has suggested a more stringent test regarding the need for jurisdictional discovery to justify the removal of cases from state to federal court on the grounds that doing so would protect the jurisdiction of state courts. See May v Wal-Mart Stores, Inc __F Supp 2d __, 2010 WL 4644 434, *5–7 (ED Ky 2010) (denying jurisdictional discovery but noting that such an approach “bucks a trend”).
  • 14 Federal courts in the United States have only limited jurisdiction, meaning that plaintiffs must demonstrate that both the dispute and the defendant fall within certain prescribed boundaries.
  • See eg Civil Procedure Rules (England) [hereinafter CPR] Rs 6.33, 6.36–6.37; Practice Direction 6b, Service out of the Jurisdiction (England); Federal Court Rules (Australia) Order 8, Rs 2–3; The Hagen [1908] P 189 (England); C Joseph and PS Selvin, “Service of Process Under United States and English Law”, in J Fellas (ed), Transatlantic Commercial Litigation and Arbitration (Oxford University Press, 2004), 37, 56, 72.
  • See Chase et al (eds), supra n 2, 522–23.
  • Although limitations of space prohibit a detailed comparative analysis of different common law procedures in this article, the author has discussed these issues elsewhere. See Strong, supra n 11, 509–23. However, common law nations are not the only states that demonstrate a disinclination to undertake US-style jurisdictional discovery. Civil law states would also appear to take an unfavourable view of this type of procedure, based on two factors. First, many civil law jurisdictions have adopted an approach to jurisdiction that is based on principled consistency, particularly with respect to the initiation of claims, as defi ned by pre-existing, codified standards that are easily amenable to facial review and analysis and that typically point to a single venue that is the only possible place the dispute can be heard. See Brussels I Regulation, Council Regulation 44/2001, [2001] OJ L12, 1 (EC); Lugano Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, 16 September 1988, [1988] OJ L319, 9; Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, 27 September 1968 [1968] OJ L299/32; see also SP Baumgartner, “Is Transnational Litigation Different?” (2004) 25 University of Pennsylvania Journal of International Economic Law 1297, 1327–44, 1342–43, 1371–72 (comparing the jurisdictional approach of the US and Germany); LJ Silberman, “The Impact of Jurisdictional Rules and Recognition Practices on International Business Transactions: The US Regime” (2004) 26 Houston International Law Journal 327, 331; Michaels, supra n 9, 1007–08, 1019–20, 1027–64 (comparing the concept of jurisdiction in the United States and the European Union). The US approach, on the other hand, is much more fact-intensive and points to numerous locales where jurisdiction might be proper. See Michaels, supra n 9, 1019–20, 1027–64. As a result, the US conceptualisation of jurisdiction leads to a much higher need for jurisdictional facts, produced, in some instances, through discovery of the defendant. No such need appears to arise under the conceptualisation of jurisdiction used by the European Union and individual European nations. Even if such a need did exist, it would be highly unlikely to be given broad expression (if any), given the second factor relevant to jurisdictional discovery, namely the views of the forum state toward discovery in general. Given that many civil law nations take a highly sceptical view toward broad-ranging discovery on the merits, it seems unlikely that they would be inclined to permit such practices during a time period when the jurisdiction of the court over the parties or the dispute has not yet been established. See Chase et al, supra n 2, 222–40 (comparing availability of discovery in various civil law jurisdictions); Baumgartner, supra, 1320; Bolt and Wheatley, supra n 9, 5–6. Thus, jurisdictional discovery is unlikely to exist in civil law states. Certainly research has not uncovered any civil law state that has adopted this type of practice.
  • Although the US may require a different method of service for foreign and domestic defendants in some (but not all) cases, jurisdiction and service are not linked to the same extent as they are in England, for example. See Federal Rules of Civil Procedure (US) [hereinafter Fed R Civ P] R 4; Born and Rutledge, supra n 11, 818–27 (discussing mechanisms for serving foreign defendants both inside and outside the US); RC Casad and WB Richman, Jurisdiction in Civil Actions: Territorial Basis and Process Limitations on Jurisdiction of State and Federal Courts (London, Butterworths Legal Publishers, 3rd edn, 1998), 565; Sir Lawrence Collins et al (eds), Dicey, Morris and Collins on The Confl ict of Laws (London, Sweet & Maxwell, 14th edn, 2006), para 11–003 (discussing English approach).
  • See Fed R Civ P 11(b); Born and Rutledge, supra n 11, 993.
  • See Mother Doe I v Al Maktoum 632 F Supp 2d 1130, 1144 (SD Fla 2007); Casad and Richman, supra n 18, 16–17.
  • Armacel Pty Ltd v Smurfi t Stone Container Corp [2007] FCA 1928 para 7 (quoting News Corporation Ltd v Lenfest Communications Inc (1996) 40 NSWLR 250, 261).
  • See eg Strong, supra n 11, 497–98; JEC, supra n 11, 545.
  • See General Industrial Co v Birmingham Sound Reproducers, Ltd 26 FRD 559, 561 (EDNY 1961).
  • See Armacel Pty Ltd v Smurfi t Stone Container Corp [2007] FCA 1928 para 7. Some doubt has recently been cast on this concept in the US, Albeit within the limited context of cases removed to federal court from state court. See May v Wal-Mart Stores, Inc __ F Supp 2d __, 2010 WL 4644 434, *7 (ED Ky 2010) (asking how the court is “to supervise the parties' discovery without jurisdiction over the case”).
  • 437 US 340 (1978).
  • 329 US 495, 500–01 (1947).
  • Oppenheimer Fund, Inc v Sanders, 437 US 340, 351 n 13 (1978).
  • Ibid Notably, Oppenheimer did not concern preliminary discovery on jurisdiction. Instead, the plaintiffs in Oppenheimer were asking the court to order the defendant to help compile a list of class members in a class action suit so that the plaintiff could send individual notices of the pending litigation. Ibid, 344. At the time the discovery order was made, the defendant was already subject to the jurisdiction of the court, and the only question was whether this sort of discovery – being non-merits-based – could properly be made the subject of an order by the district court. Ibid, 351.
  • Ellis v Fortune Seas, Ltd 175 FRD 308, 311 (SD Ind 1997) (citing Insurance Corp of Ireland, Ltd v Compagnie des Bauxites de Guinee 456 US 694 (1982), and various circuit court cases); CA Wright and AR Miller, Federal Practice and Procedure (St Paul, MN, Thomson West, 3rd edn, 2010), s 1067. 6.
  • See A Briggs and P Rees, Civil Jurisdiction and Judgments (London, Informa, 5th edn, 2005), 403– 04.
  • Fact pleading is said to be more common, though some states' interpretation of fact pleading is somewhat lax and perhaps more akin to US notice pleading. See eg CPR Rs 16.2, 16.4.; ALI/UNIDROIT, supra n 2, xlviii–xlix; N Andrews, The Modern Civil Process (Tübingen, Mohr Siebeck, 2008), paras 3.04 (describing English “statements of case” (ie, pleadings) and noting “[t]here is no need to include…any detailed evidence or details of legal argument” in such statements), 3.08.
  • ALI/UNIDROIT, supra n 2, xlix; see also ibid, 7; Dodson, supra n 2, 443, 452.
  • These issues are discussed in more detail by the author elsewhere. See Strong, supra n 11, 497– 508, 523–64.
  • Recent US Supreme Court decisions have suggested other tactical alternatives in a limited number of cases. See infra nn 130–49 and accompanying text.
  • Ellis v Fortune Seas, Ltd 175 FRD 308, 311 (SD Ind 1997) (citation omitted).
  • A federal district court may also raise questions regarding subject matter jurisdiction sua sponte, although such a move would be unusual. See Grupo Datafl ux v Atlas Global Group, LP 541 US 567, 593 (2004).
  • Hagen v U-Haul of Tennessee 613 F Supp 2d 986, 1002 n10 (WD Tenn 2009) (citation omitted).
  • See Fed R Civ P 37; Saudi v Marine Atlantic, Ltd 306 Fed Appx 653, 654 (2d Cir 2009).
  • Insurance Corp of Ireland, Ltd v Compagnie des Bauxites de Guinee 456 US 694, 709 (1982).
  • Maersk, Inc v Neewra, Inc 554 F Supp 2d 424, 440 (SDNY 2008); see also Freeman v United States 556 F 3d 326 (5th Cir 2009); Wright and Miller, supra n 29, s 1067. 6.
  • See eg Klein v Freedom Strategic Partners, LLC 595 F Supp 2d 1152, 1160 (D Nev 2009); Mother Doe I v Al Maktoum 632 F Supp 2d 1130, 1144–45 (SD Fla 2007); Ellis v Fortune Seas, Ltd 175 FRD 308, 312 (SD Ind 1997); Born and Rutledge, supra n 11, 992; Wright and Miller, supra n 29, s 1067. 6.
  • Fed R Civ P 26, cmt 2000 amend.
  • Review of issues involving jurisdictional discovery has been sought, but denied, on two separate occasions in the last six years. See Petition for a Writ of Certiorari, Lowery v Alabama Power Co 483 F 3d 1994 (11th Cir 2007), cert denied sub nom Hanna Steel Corp v Lowery 128 S Ct 2877 (2008); Petition for a Writ of Certiorari, Dever v Hentzen Coatings, Inc 380 F 3d 1070 (8th Cir 2004), cert denied, 543 US 1147 (2005).
  • See Strong, supra n 11, 524–32 (discussing various standards).
  • See GTE New Media Services, Inc v BellSouth Corp 199 F 3d 1343, 1352 (DC Cir 2000); Mother Doe I v Al Maktoum 632 F Supp 2d 1130, 1144–45 (SD Fla 2007); In re Vitamins Antitrust Litigation 94 F Supp 2d 26, 35 (DDC 2000).
  • Hollins v US Tennis Association 469 F Supp 2d 67, 70 (EDNY 2006).
  • Regan v Loewenstein 292 Fed Appx 200, 205 (3d Cir 2008); see also Metcalfe v Renaissance Marine, Inc 566 F 3d 324, 330, 336 (3d Cir 2009).
  • Boschetto v Hansing 539 F 3d 1011, 1011 (9th Cir 2008); see also Blair v City of Worcester 522 F 3d 105, 111 (1st Cir 2008) (supporting discovery in cases of “plausible factual disagreement or ambiguity”); Klein v Freedom Strategic Partners, LLC 595 F Supp 2d 1152, 1160 (D Nev 2009).
  • Eaton v Dorchester Dev, Inc 692 F 2d 727, 729 n7 (11th Cir 1982); Williamson v Tucker 645 F 2d 404, 414 (5th Cir 1981); Blanco v Carigulf Lines 632 F 2d 656 (5th Cir 1980); Chatham Condominium Associations v Century Village, Inc 597 F 2d 1002, 1012 (5th Cir 1979); Mother Doe I v Al Maktoum 632 F Supp 2d 1130, 1145 (SD Fla 2007).
  • Hollins v US Tennis Association 469 F Supp 2d 67, 71 (EDNY 2006); see also Born and Rutledge, supra n 11, 993.
  • Metcalfe v Renaissance Marine, Inc 566 F 3d 324, 330, 336 (3d Cir 2009).
  • Ellis v Fortune Seas, Ltd 175 FRD 308, 312 (SD Ind 1997).
  • Hansen v Neumueller 163 FRD 471, 475 (D Del 1995).
  • Boschetto v Hansing 539 F 3d 1011, 1020 (9th Cir 2008).
  • Doe I v State of Israel 400 F Supp 2d 86, 121–22 (DDC 2005).
  • Autogenomics, Inc v Oxford Gene Technology Ltd 566 F 3d 1020, 1023 (Fed Cir 2009).
  • Ellis v Fortune Seas, Ltd 175 FRD 308, 312 (SD Ind 1997).
  • See eg Toys “R” Us, Inc v Step Two, SA 318 F 3d 446, 448 (3d Cir 2006); Nationwide Mutual Ins Society v Tryg Int'l Ins Co 91 F 3d 790, 792 (6th Cir 1996).
  • See eg Freeman v United States 556 F 3d 326, 342 (5th Cir 2009).
  • Strong, supra n 11, 504.
  • Oppenheimer Fund, Inc v Sanders 437 US 340, 351 n 13 (1978). Only one major case on federal jurisdiction predates Oppenheimer. See International Shoe Co v Washington 326 US 310 (1945) (creating the minimum contacts test for personal jurisdiction).
  • 62 In ways, this response may be purely pragmatic, in that district courts are much less likely to be overruled for allowing discovery than for failing to do so.
  • Space limitations prohibit the reproduction of actual requests for jurisdictional discovery, but the amount of information sought can be extensive. See Strong, supra n 11, 535–57 (containing actual discovery requests fi led in US federal court).
  • State long-arm statutes describe the jurisdictional reach of a particular state court and typically adopt one of two approaches: (1) an expansive view that permits jurisdiction to the fullest extent permitted by the US Constitution (or sometimes both the US Constitution and the state constitution), or (2) a narrower view that lists the specifi c circumstances in which personal jurisdiction may be asserted. See eg California Civil Procedure Code s 410.10 (2006) (extending jurisdiction to the full extent of state and federal constitutional limits); New York Civil Practice Law s 302 (2006) (using the enumerated grounds approach); Utah Code Annotated s 78B-3–201 (2008) (extending jurisdiction to the full extent of the federal constitution).
  • Born and Rutledge, supra n 11, 213–16.
  • This provision states: “For a claim that arises under federal law, serving a summons or filing a waiver of service establishes personal jurisdiction over a defendant if:
  • the defendant is not subject to jurisdiction in any state's courts of general jurisdiction; and
  • exercisin g jurisdiction is consistent with the United States Constitution and laws.” (Fed R Civ P 4(k)(2))
  • The reference to the absence of jurisdiction in any state court means that the defendant is not resident or domiciled in any US state.
  • Fed R Civ P 4, 1993 Advisory Committee Note C4–35; see also Touchcom, Inc v Bereskin & Parr 574 F 3d 1403, 1412–15 (Fed Cir 2009) (discussing various ways circuit courts have interpreted Rule 4(k)(2)); United States v Swiss American Bank, Ltd 191 F 3d 30, 38–46 (1st Cir 1999).
  • Not only does the Rule 4(k)(2) analysis put numerous state contacts into issue, it also raises the question of who has the burden of proof regarding the unavailability of any state court venue. This can also result in extensive jurisdictional discovery of the defendant. For example, the Notes published along with the 1993 enactment of Rule 4(k)(2) ask: “[W]ill the plaintiff be put to the burden of reviewing the longarm statutes of every state in the union in order to show that none would apply to support jurisdiction? Requiring that would impose a burden on the plaintiff so great that it could undermine the purpose of subdivision (k)(2). It seems more consistent with the latter to burden the defendant with singling out the state in which the defendant contends that jurisdiction would be available, which is not a task the defendant can turn to happily. It amounts to a concession of jurisdiction in a designated state. Perhaps the defendant had best confi ne its efforts to trying to show that even its presumably national contacts in the case don't suffi ce for jurisdiction. From the plaintiff's point of view, it may indeed be worthwhile to prepare proof of the unavailability of jurisdiction under any state longarm statute, even if it entails a broad and expensive research. It will all depend on the value of the case, and on its merit. If the stakes are high enough, the plaintiff is likely to fi nd the jurisdictional inquiry not such a strain after all.” (Fed R Civ P 4 1993 Advisory Committee Note C4–35) Of course, to the extent that a plaintiff can share the burden of research by seeking jurisdic-tional discovery, Rule 4(k)(2) also increases the burden on the defendant.
  • Casad and Richman, supra n 18, 14–15; see also Eaton v Dorchester Dev, Inc 692 F 2d 727, 733 (11th Cir 1982).
  • See Epstein et al, supra n 9, s 6.06.
  • See eg Anderson v Dassault Aviation 361 F 3d 449, 452–55 (8th Cir 2004); Doe v Unocal 248 F 3d 915, 925–31 (9th Cir 2001).
  • See eg Texas Int'l Magnetics, Inc v BASF Aktiengesellschaft 31 Fed Appx 738, 739–40 (2d Cir 2002); Freres v SPI Pharma, Inc 629 F Supp 2d 374, 383–86 (D Del 2009).
  • Ordinarily, discovery of both the plaintiff and defendant proceeds simultaneously, subject to rules regarding automatic disclosure and the timing of the discovery conference. See Fed R Civ P 26(a)(1), 26(d), 26(f). However, a party who has disputed the jurisdiction of the court may not take any affi rmative steps on the merits, including discovery of the other party, lest the juris-dictional objections be considered waived. See Wright and Miller, supra n 29, s 1344.
  • 18 USC s 1964.
  • See eg Noble Security, Inc v MIZ Engineering, Ltd 611 F Supp 2d 513, 536–41, 548–53 (ED Va 2009); Hollins v US Tennis Association 469 F Supp 2d 67, 72 (EDNY 2006). Courts may also need to undertake jurisdictional discovery regarding subject matter jurisdiction under RICO. See Wiwa v Shell Petroleum Dev Co of Nigeria Ltd 335 Fed Appx 81, 84 (2d Cir 2009).
  • See Noble Security, Inc v MIZ Engineering, Ltd 611 F Supp 2d 513, 539 (ED Va 2009); McMullen v European Adoption Consultants, Inc 109 F Supp 2d 417, 421 (WD Penn 2000); Ellis v Fortune Seas, Ltd 175 FRD 308, 313 (SD Ind 1997).
  • See Hanson v Denckla 357 US 235, 253 (1958); A Althouse, “The Use of Conspiracy Theory to Establish in Personam Jurisdiction: A Due Process Analysis” (1983) 52 Fordham Law Review 234, 235.
  • 28 USC ss 1604–07 (granting foreign states and instrumentalities immunity from suit unless one of several exceptions apply).
  • Epstein et al, supra n 9, s 7.01.
  • Arriba Ltd v Petroleos Mexicanos 962 F 2d 528, 534 (5th Cir), cert denied, 506 US 956, 113 S Ct 413 (1992). To some extent, FSIA cases seem distinctive because a foreign state's sovereignty is clearly at issue. However, questions of sovereignty are not limited to disputes involving states or state agencies. As noted by numerous courts and commentators, US discovery orders directed at private parties located abroad can also be seen as infringing upon foreign states' sovereign power. These arguments tend to be unpersuasive to US courts. See eg Société Nationale Industrielle Aérospatiale v United States District Court 482 US 522, 543–44 (1987); In re Automotive Refi nishing Paint Antitrust Litigation 358 F 3d 288, 304 (3d Cir 2004) (concluding no such infringement occurred); In re Vitamins Antitrust Litigation 120 F Supp 2d 45, 50 (DDC 2000) (same); Born and Rutledge, supra n 11, 907–94; Bolt and Wheatley, supra n 9, 13; HL Buxbaumz, “Territory, Territoriality, and the Resolution of Jurisdictional Confl ict” (2009) 57 American Journal of Comparative Law 631, 670–71; PJ White, “International Judicial Assistance in Antitrust Enforcement: The Shortcomings of Current Practices and Legislation, and the Roles of International Organizations” (2010) 62 Administrative Law Review 263, 269. All of these issues have been discussed within the context of merits discovery and so will not be repeated herein, even though these concerns apply to jurisdictional discovery with equal force. Indeed, some might even take the view that issues of sovereignty should be given heightened respect in cases involving jurisdictional discovery, since the US court's power over the party or the dispute has not yet been affi rmatively established. However, that has not been the case. See In re Automotive Refi nishing Paint Antitrust Litigation 358 F 3d 288, 304 (3d Cir 2004) (concluding no such infringement occurred); In re Vitamins Antitrust Litigation 120 F Supp 2d 45, 50 (DDC 2000) (same).
  • Terry, supra n 11, 1030.
  • Swanson, supra n 11, 446.
  • For example, foreign states and state agencies are not entitled to certain procedural protections granted under the US Constitution to all private parties, foreign and domestic, because foreign states are not “persons” in a constitutional sense. See Argentina v Weltover 504 US 607, 619 (1992); Frontera Resources Azerbaijan Corp v State Oil Co of the Azerbaijan Republic, 582 F 3d 393, 399–400 (2d Cir 2009); Price v Socialist People's Libyan Arab Jamahiriya 294 F 3d 82, 99 (DC Cir 2002); TMR Energy Ltd v State Property Fund of Ukraine 411 F 3d 296, 301 (DC Cir 2005); SI Strong, “Enforcement of Arbitral Awards Against Foreign States or State Agencies” (2006) 26 Northwestern Journal of International Law and Business 335, 341–42.
  • See Klein v Freedom Strategic Partners LLC 595 F Supp 2d 1152, 1160 (D Nev 2009).
  • Casad and Richman, supra n 18, 13.
  • See Epstein et al, supra n 9, s 6.04.
  • Ellis v Fortune Seas, Ltd 175 FRD 308, 311 (SD Ind 1997).
  • 326 US 310, 316 (1945) (requiring defendants to “have certain minimum contacts” with the forum “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice’”).
  • See eg Oppenheimer Fund, Inc v Sanders 437 US 340, 353–54 (1978).
  • See eg International Shoe Co v Washington 326 US 310, 319 (1945) (noting the adjudication of personal jurisdiction “cannot be simply mechanical or quantitative”); see supra nn 11–12 and accompanying text (noting lack of scholarly commentary in this fi eld).
  • 444 US 286, 295 (1980) (noting that courts must fi nd “purposeful contacts” and the “reasonable” exercise of jurisdiction); see also Asahi Metal Indus Co v Superior Court 480 US 102 (1987) (plurality opinion) (agreeing that the two-part test in International Shoe should be applied but failing to provide a clear description of whether minimum contacts requires the defendant to “purposefully direct” its conduct toward the forum); Burger King Corp v Rudzewicz 471 US 462 (1985) (requiring exercise of jurisdiction to be reasonable); Helicopteros Nacionales de Colombia, SA v Hall 466 US 408, 414–15 (1984) (distinguishing between specific and general jurisdiction).
  • See Asahi Metal Indus Co v Superior Court 480 US 102, 114 (1987) (O'Connor, J).
  • See Dubinsky, supra n 1, 320–23; PR Dubinsky, “Is International Litigation a Field? Two Views of the Border” (2007) 101 American Society of International Law Proceedings 365, 374; LJ Silberman, “‘Two Cheers’ for International Shoe (and None for Asahi): An Essay on the Fiftieth Anniversary of International Shoe” (1995) 28 UC Davis Law Review 755, 760–61.
  • 480 US 102, 115 (1987) (O'Connor, J) (citation omitted).
  • See Goodyear Luxembourg Tires, SA v Brown 681 SE 2d 382 (NC App), cert granted 131 S Ct 63 (2010); J McIntyre Machinery, Ltd v Nicastro 987 A 2d 575 (NJ), cert granted 131 S Ct 62 (2010).
  • Requests for discovery of facts relating to general jurisdiction can be very broad and seek information regarding a wide variety of facts. See Strong, supra n 11, 548–53 (containing actual discovery requests filed in US federal court).
  • Helicopteros Nacionales de Colombia, SA v Hall 466 US 408, 414–15 (1984).
  • See eg Synthes (USA) v GM Dos Reis Jr Ind Com de Equip Medico 563 F 3d 1285, 1291 (CA Fed 2009).
  • See FH Easterbrook, “Discovery as Abuse” (1989) 69 Boston University Law Review 635, 643–44; Silberman, supra n 93, 758.
  • McGee v International Life Ins Co 355 US 220, 223 (1957); see also Burger King Corp v Rudzewicz 471 US 462, 475 n 18 (1985). Inquiries into subject matter jurisdiction – such as those regarding domicile – can also require a court to a “review of the ‘totality of the evidence’”, since “no single factor is conclusive”. Comprehensive Care Corp v Katzman No 09:1375, 2009 WL 3157 634 at *2 (MD Fla 26 September 2009).
  • Burger King Corp v Rudzewicz 471 US 462, 476–77 (1985); see also United States v Swiss American Bank, Ltd 274 F 3d 610, 635 (1st Cir 2001) (Lipez, CJ, dissenting) (discussing the need to use jurisdictional discovery to establish “gestalt” factors); Tom's of Maine v Acme-Hardesty Co 247 FRD 235, 239 (D Me 2008).
  • See Shaffer v Heitner 433 US 186 (1977); Glencore Grain Rotterdam BV v Shivnath Rai Harnarain Co 284 F 3d 1114 (9th Cir 2002); Casad and Richman, supra n 18, 48; Epstein et al, supra n 9, s 3.05; Clermont, supra n 11, 1004; but see Burnham v Superior Court of California 495 US 605, 619–22 (1990) (discussing Shaffer).
  • 103 See USC, Art III, ss 1–2.
  • 28 USC s 1332(a).
  • See eg Kovacs v Chesley 406 F 3d 393, 395–99 (6th Cir 2005).
  • Anthony v Security Pacifi c Financial Services Inc 75 F 3d 311, 317 (7th Cir 1996).
  • See eg Freeman v United States 556 F 3d 326, 341–42 (5th Cir 2009); Wiwa v Shell Petroleum Dev Co of Nigeria Ltd 335 Fed Appx 81, 84 (2d Cir 2009); DDB Tech, LLC v MLB Advanced Media, LP 517 F 3d 1284, 1291 (CA Fed 2008).
  • See 28 USC, ss 1332, 1348.
  • Hertz Corp v Friend 130 S Ct 1181, 1192 (2010).
  • See ibid, 1194; see also Shawnee Terminal Railway Co v JE Estes Wood Co No 09:00113, 2009 WL 3064 973 at *10 (SD Ala Sept 18, 2009) (claiming plaintiff had provided “selective” evidence vis-à-vis its place of corporate citizenship).
  • See eg Wiwa v Shell Petroleum Dev Co of Nigeria Ltd 335 Fed Appx 81, 84 (2d Cir 2009); Eaton v Dorchester Dev, Inc 692 F 2d 727, 730 (11th Cir 1982).
  • See supra nn 15–17 and accompanying text (discussing Australia, Canada and England).
  • See eg In re Vitamins Antitrust Litigation 120 F Supp 2d 45, 49 (DDC 2000).
  • See Dodson, supra n 2, 469; Michaels, supra n 9, 1033–34.
  • Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, opened for signature 18 March 1970, TIAS No 7444.
  • Report de la Commission Speciale, 4 Conference de La Haye de droite international privé: Actes et documents de la Onzième session 55 (1970), as translated in Born and Rutledge, supra n 11, 964.
  • See Born and Rutledge, supra n 11, 970 (citing various state and federal courts).
  • 482 US 522 (1987).
  • Ibid, 536.
  • Ibid, 541.
  • Ibid.
  • Hague Conference on Private International Law: Special Commission Report on the Operation of the Hague Service Convention and the Hague Convention, April 1989, reprinted in (1989) 28 International Law Materials 1556, 1564, 1569; see also In re Automotive Refi nishing Paint Antitrust Litigation 358 F 3d 288, 302 (3d Cir 2004).
  • See eg In re Baycol Products Litigation 348 F Supp 2d 1058, 1060 (D Minn 2004); Tulip Computers International BV v Dell Computer Corp 254 F Supp 2d 469, 474 (D Del 2003); but see First American Corp v Price Waterhouse LLP 154 F 3d 16, 23 (2d Cir 1998).
  • See eg In re Automotive Refi nishing Paint Antitrust Litigation 358 F 3d 288, 301–05 (3d Cir 2004); Schindler Elevator Corp v Otis Elevator Co 657 F Supp 2d 525, 534 (DNJ 2009); In re Vitamins Antitrust Litigation 120 F Supp 2d 45, 49 (DDC 2000); Fishel v BASF Group 175 FRD 525, 529 (SD Iowa 1997); Rich v KIS California, Inc 121 FRD 254, 258 (MDNC 1988); Born and Rutledge, supra n 11, 993. This is not to say that all judges have approved of this approach. Indeed, Circuit Judge Roth of the Third Circuit has expressly questioned the wisdom of Aérospatiale and called for the Supreme Court to revisit the issue “to ensure that lower courts are in fact exer-cising ‘special vigilance to protect foreign litigants’ and demonstrating respect ‘for any sovereign interest expressed by the foreign state.'” In re Automotive Refi nishing Paint Antitrust Litigation, 358 F 3d 288, 306 (3d Cir 2004) (Roth, CJ, concurring) (citation omitted). Indeed, his concern was “that many courts [were] simply discarding the treaty as an unnecessary hassle”. Ibid.
  • In re Vitamins Antitrust Litigation 120 F Supp 2d 45, 49–50 (DDC 2000) (listing courts that have adopted this approach).
  • This differs from some state (non-federal) courts, which have been known to require recourse to the Hague Convention in cases where a prima facie basis of jurisdiction over the defendant has not been established. See eg Geo-Culture, Inc v Siam Investment Mgmt 936 P 2d 1063, 1067 (Or App 1997).
  • See eg First American Corp v Price Waterhouse LLP 154 F 3d 16, 23 (2d Cir 1998).
  • That is always the better tactical move in US federal courts, given the preference US judges have for relying on domestic law, even when deciding international legal issues. See Dodson, supra n 2, 469; Michaels, supra n 9, 1033–34.
  • See supra n 35 and accompanying text.
  • 549 US 422 (2007).
  • The US doctrine of forum non conveniens is very similar to that used in England. Compare Piper Aircraft Co v Reyno 454 US 235 (1981) with Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 (HL).
  • Sinochem Int'l Co v Malaysia Int'l Shipping Co 549 US 422, 436 (2007) (emphasis added) (quoting Ruhrgas AG v Marathon Oil Co 526 US 574, 587–88 (1999)).
  • Sinochem Int'l Co v Malaysia Int'l Shipping Co 549 US 422, 431–32 (2007); see also Ruhrgas AG v Marathon Oil Co 526 US 574, 578 (1999) (noting no “unyielding jurisdictional hierarchy” regarding the order in which motions to dismiss must be decided).
  • See Piper Aircraft Co v Reyno 454 US 235, 249 (1981) (stating “dismissal will ordinarily be appropriate where trial in the plaintiff's chosen forum imposes a heavy burden on the defendant or the court, and where the plaintiff is unable to offer any specifi c reasons of convenience supporting his choice”).
  • However, US defendants can successfully assert a claim of forum non conveniens in some circumstances. See Piper Aircraft Co v Reyno 454 US 235, 268–69 (1981) (allowing dismissal for forum non conveniens on motion brought by multiple defendants, including US defendants, associated with the Lockerbie bombing in Scotland).
  • Although discovery may be sought on issues relevant to the forum non conveniens analysis, Sinochem suggests that there will be times when the question of forum may be decided on no or limited discovery (as compared to discovery on personal or subject matter jurisdiction).
  • Some US courts will only dismiss a case under forum non conveniens if they can attach certain conditions to the dismissal, such as the defendant's agreement to suit in another jurisdiction. See Sinochem Int'l Co v Malaysia Int'l Shipping Co 549 US 422, 435 (2007) (declining to address the issue).
  • See Ashcroft v Iqbal 129 S Ct 1937 (2009); Tellabs, Inc v Makor Issues & Rights, Ltd 551 US 308 (2007); Erickson v Pardus 551 US 89 (2007); Bell Atlantic Corp v Twombly 550 US 544 (2007).
  • Ashcroft v Iqbal 129 S Ct 1937, 1950 (2009) (citations omitted).
  • RG Bone, “Twombly, Pleading Rules, and the Regulation of Court Access” (2009) 94 Iowa Law Review 873, 898–99; see also Bell Atlantic Corp v Twombly 550 US 544, 559–60 and n 6 (2007).
  • See Ashcroft v Iqbal 129 S Ct 1937, 1953 (2009); Bell Atlantic Corp v Twombly 550 US 544, 559 (2007).
  • JEC, supra n 11, 533.
  • See Strong, supra n 11, 580.
  • See eg Stirling Homex Corp v Homasote Co 437 F 2d 87, 88 (2d Cir 1971); Hagen v U-Haul Co of Tennessee 613 F Supp 2d 986, 1002 (WD Tenn 2009); Hansen v Neumueller 163 FRD 471, 474 (D Del 1995). However, some precedents do suggest the need for suffi cient factual pleadings regarding personal jurisdiction. See Dever v Hentzen Coatings, Inc 380 F 3d 1070, 1072 (8th Cir 2004), cert denied, 543 US 1147 (2005).
  • See eg Walden v Bartlett 840 F 2d 771, 775 (10th Cir 1988).
  • See Strong, supra n 11, 579–83.
  • Arar v Ashcroft 532 F 3d 158, 174 (2d Cir 2008) (citations omitted), vacated and superseded on other grounds on rehearing en banc, 585 F 3d 559 (2nd Cir 2009).
  • See eg Notice Pleading Restoration Act of 2009, s 1504, 111th Cong s 2 (proposing a return to the pre-Twombly pleading standard).
  • Strong, supra n 11, 565–76.
  • See eg Born, supra n 3, 408, 410–11.
  • See supra nn 66–68 and accompanying text.
  • See supra nn 15–17 and accompanying text (regarding approaches used in Australia, Canada and England).
  • See eg Armacel Pty Ltd v Smurfi t Stone Container Corp [2007] FCA 1928 para 7.
  • Société Nationale Industrielle Aérospatiale v United States District Court 482 US 522, 546 (1987).
  • ALI/UNIDROIT, supra n 2, xxxv.
  • Nevertheless, the Principles do discuss the proper grounds for jurisdiction (Principle 2), the content of pleadings (Principle 11), and the extent of permissible disclosure or discovery of information (Principle 16), which provides some basis for analysis. Ibid, 18–20, 30–31, 36–38.
  • Clermont and Palmer, supra n 5, 475.
  • See Petition for a Writ of Certiorari, Lowery v Alabama Power Co 483 F 3d 1994 (11th Cir 2007), cert denied sub nom Hanna Steel Corp v Lowery 128 S Ct 2877 (2008); Petition for a Writ of Certiorari, Dever v Hentzen Coatings, Inc 380 F 3d 1070 (8th Cir 2004), cert denied, 543 US 1147 (2005).
  • For example, Rule 26 was amended in 2000 to narrow the scope of discovery and deal with diffi culties relating to “divergent disclosure and other practices”. Fed R Civ P 26 cmt 2000 amend; SN Subrin and MY Woo, Litigating in America: Civil Procedure in Context (New York, Aspen Publishers, 2006), 148–50.
  • Of course, the two cases on jurisdiction that are currently pending in the US Supreme Court may indirectly affect the scope of jurisdictional discovery. See Goodyear Luxembourg Tires, SA v Brown 681 SE 2d 382 (NC App), cert granted 131 S Ct 63 (2010); J McIntyre Machinery, Ltd v Nicastro 987 A 2d 575 (NJ), cert granted 131 S Ct 62 (2010).
  • See Baumgartner, supra n 17, 1349.
  • Parties are unlikely to obtain a reversal of a decision regarding jurisdictional discovery on appeal, given the high degree of deference shown to trial judges in these matters. See eg Patterson v Dietze, Inc 764 F 2d 1145, 1148 (5th Cir 1985) (stating jurisdictional discovery “will not be disturbed ordinarily unless there are unusual circumstances showing a clear abuse”).

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