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C erta in Fund s v. K PMG L LP, et a l . 1 2 3 UNITED STATES COURTOF APPEAL S 4 F O R T H E S E C O N D C IR C U IT 5 6 7 8 August Term, 2014 9 10 (Argued: June 18, 2015 D ecided: August 20, 2015) 11 12 Docket No. 14-2838 13 14

________________ 15 16 C E R T A I N F U N D S , A C C O U N T S A N D / O R I N V E S T M E N T V E H I C L E S M A N A G E D B Y 17 A F F I L I A T E S O F F O R T R E S S I N V E S T M E N T G R O U P L.L.C. , 18 19 Plaintiffs-Appellants, 20 21 22 — v. — 23 24 KPMG, L.L.P., KPMG I N T E R N A T I O N A L C O O P E R A T I V E , P R I C E W A T E R H O U S E C O O P E R S 25 L.L.P., P R I C E W A T E R H O U S E C O O P E R S I N T E R N A T I O N A L L I M I T E D , 26 27 Defendants-Appellees. * 28 29

The Clerk ofthe Cour t is respectfully directed to change the official

* caption to conform to the caption above. 11 B e f o r e : 2 3 J A C O B S , C A L A B R E S I , and L Y N C H , Circuit Judges . 4

__________________ 5 6 Plaintiffs-appellants i nvestment funds sought, by ex parteapplicati on filed 7 pursuant to 28 U.S.C . § 1782, to discover cer tain docum ents from defe ndant 8 domestic and internationalaccounting firms relating to audits conducted by their 9 Middl e Easter n affili ates. The district court (Naomi Rei ce Buchwald, Judge ) 10 denied the application on several grounds. We hold that (1) assuming arguendo 11 that the funds were “interested pe rson[s ]” in ongoing foreign procee dings, the 12 funds did not establish that the evidence they sought was “for use” in those 13 procee dings; and (2) the district court did not err in concluding that additi onal 14 procee dings that the funds asser ted they intended to initi ate were not “within 15 reaso nable contemplation” at the time the application was made. We accordingly 16 AFFIRM the judgment of the district court. 17 18 D A V I D S. T O R B O R G , Jones D ay, Washington, D.C. (Lo uis K. 19 Fisher, D avid T. Rai mer, Jones Day, Washington, D.C ., 20 Thomas E. Lynch, Jones D ay, New York, N .Y., on the brief ), for 21 plaintiffs-appellants . 22 23 A L L I S O N B. J O N E S (Kannon K. Shanmugam, on the brief ), 24 Wil li ams & Connolly LLP, Washington, D.C., for defendant25 appellee KPMG L.L.P. 26 27 K E N N E T H M. K A T Z (Will iam R . Maguire, Yoshinori Sasao, on 28 the brief ), Hughes Hub bard & Ree d LLP, New York, N.Y., for 29 defendant-appellee KPMG International Cooperative. 30 31 A N T H O N Y L. RY A N (Thomas G. Rafferty, Samira Shah, on the 32 brief ), Cravath, S waine & Moore LLP, New Yor k, N.Y., for 33 defendant-appellee PricewaterhouseCoopers International Limited. 34 21 James J. Capr a, Jr., King & Spaldi ng LLP, New York, N .Y. , for 2 defendant-appellee PricewaterhouseCoopers L.L.P. 3 4 5 G E R A R D E. L Y N C H , Circuit Judge : 6 In this case, we consider s ever al aspects of 28 U.S.C . § 1782, the statute 7 providing assistance to li tigants i n proce edings befor e fore ign and international 8 tribunals. The statute authorizes a district court, “upon the appli cation of any 9 interested pe rson,” to or der a par ty “found” in the judi cial di strict in whi ch the 10 court sits to produce discovery “fo r use” in a fore ign proceeding. 28 U.S.C . § 11 1782(a). Plaintiffs-appellants i nvestment funds sought, by ex parteapplicati on, to 12 discover cer tain docum ents from the de fendant American and international 13 accounting firms relating to audits conducted by their Middl e Easter n affili ates. 14 The district court (NaomiReice Buchwald, Judge ) denied the application on 15 sever al grounds. We conclude that (1) assuming arguendo that the funds were 16 “interested pe rson[s ]” in ongoing foreign procee dings, the funds did not 17 establish that the evidence they s ought was “for use” in those procee dings; and 18 (2) the district court did not err in finding that additi onal proceedings that the 19 funds asse rted they intended to initiat e were not “within reas onable 20 contemplati on” at the time the appli cation was made. We accordingly AFFI RM 31 the judgment of the district court. 2 BACKGROUND 3 Plaintiffs-appellants are certain funds, accounts, an d/or inves tment 4 vehicles managed by affili ates of Fortre ss Investment Group, LLC (“the Funds”). 5 The Funds held interes ts collecti vely amounting to roughly $380 mi ll ion in two 6 Saudi conglomerates, the Saad Group (“S aad”) and Ahmad Hamad Algosaibi 7 and Brother s Company (“AHAB”). The largest of these interests was aninterest 8 in the Gol den Belt 1 (“GB1") sukuk , a financialinstrument issued by Saad. The 1 9 Funds’ interest in the GB1 sukuk was valued at $129 mi ll ion, which amou nted to 10 about 20% of the sukuk’s aggregate value, making the Funds the single largest 11 holder of its certificates. The Funds held various other investments issued by 12 Saad and AHAB, including partici pation in a Cayman I slands holding 13 corpor ation for Saad’s ass ets outside of Saudi Arabia, valued at $35 m il li on. 14 In 2009, AHAB began r eporting financial problems that were traced to 15 fraud and embe zzlement of the conglomerate’s asse ts by Maan Al Sanea, the 16 owner of S aad. In respon se to the alleged fraud, the S audi Arabian Monetary

A sukuk rese mbles a corpor ate bond but is structured to comply with 1 Shari’a law. 41 Authority froze all of AlSanea’s assets. This pr ompted Moody’s to withdraw all 2 ratings for Saad. O ther international regulatory authoriti es re acted, including, as 3 relevant her e, the C entral Bank of Bahrain, which seized con trol of sever al 4 subsidiaries of Saad and AHAB, an d the Grand Cour t of the Cayman Islands, 5 which issued a worldwide freezing orde r against Al Sanea and dozen s of 6 companies owned by S aad, including the one in which the Funds h eld their $35 7 mil li on interest. As a r esult of these eve nts, all of the financial i nstruments of 8 Saad and AHAB, once worth seve ral bill ion doll ars, ar e now in default. 9 Various legal acti ons wer e institut ed in sever al countries in the wake of the 10 conglomerates’ default. First, the Delegate of the GB1 sukuk brought a claim in 11 Saudi Arabia against Saad and Al Sanea to enfor ce the pr omissory notes that 12 made up the sukuk . That clai m was original ly brought befor e the Saudi 13 Negotiable Instruments Commit tee, a quasi-ju dicialbody that has binding 14 authority to resolve disputes related to negotiable instruments. The claimhas 15 now bee n withdrawn, however , and (after the d istrict court’s decision i n this 16 case) r efiled before the Saudi Banking Disputes Committee, anothe r 17 quasi-j udici al comm itt ee with jurisdict ion over bank de bt. Secon d, procee dings 18 to li qui date the Cayman Island holding corporation were initiat ed in the Cayman

51 Islands. Third, a proceeding to liq uidate the assets of an AHAB affiliate i n which 2 the Funds held an intere st was commenced in Bahrain. 3 Near ly fi ve years after the S audi conglom erates ’ default, the Funds fil ed an 4 ex parte applicati on in the United States District Court for the SouthernDistrict of 5 New York pur suant to 28 U.S.C. § 1782 se eking documents and other e vidence 6 relevant to these foreign proc eedings from the accounting firms KPMGL.L.P., 7 KPMGInternational Cooperative, Pricewaterhouse Coope rs L.L.P., and 8 Pricewaterhouse Coope rs Intern ationalLimi ted (collecti vely, “the firms”). KP MG 9 L.L.P. and PricewaterhouseC oopers L.L.P. are United States-b ased accounting 10 firms (“the U.S. firms”), while KP MG I nternational Cooper ative and 11 Pricewaterhouse Coope rs Intern ationalLimi ted are firms incorpor ated, 12 resp ectively, i n Switzerland and England (“the international firms”). According 13 to the Funds, affili ates of the firms in Saudi Arabia, Egypt, and Dubai audited 14 various companies owned by AHAB an d Saad that were involved i n the 15 offerings and inves tments that the Funds held. Theref ore, the y contend, the 2 The parties dispute what role, if any, the defe ndant firms played in the 2 audits conducted by Middl e Easter n accounting firms affil iated wi th them; what control, if any, the international fi rms wield over their Middle Eastern affili ates; and wher e the international firms are located. Gi ven the b ases onwhich we reso lve this appeal, we need not addre ss these disputes. 61 firms are likely t o have information about the finances of the two conglomerates 2 that wil l be highly useful and relevant to the pending procee dings in the various 3 foreign jurisdicti ons. 4 In addit ion to the ongoing proceedings des cribed above , the Funds alleged 5 that they intended to use the information sought through their § 1782 applicati on 6 in several legal acti ons that the Funds planned to initiat e directly. As part of their 7 applicati on befor e the district court, the Funds asse rted that they “intend[ed] to 8 instigat e claim s against the Saad Group and AHAB b efore ” the two Saudi qu asi9 judici al comm itt ees, “intend[e d] to bring claim s, sounding in tort and bre ach of 10 contract, against those re sponsible for the faulty financial reports that misled 11 investors into purchasing intere sts in GB1” i n English court, and intended to seek 12 other r elief “from the Ki ngdom of Saudi Arabia or its agencies.” App’x 110-11, 13 133. 14 The district court denied the Funds’ § 1782 applicati on. The court he ld that 15 the Funds sought documents pr imari ly from the internationalfirms, which are 16 both differen t entiti es fr om the New York-b ased U.S. firms, and that the 17 international fi rms were not “found” in the judici al di strict in whi ch the

71 applicati on was filed. 3 2 With respect to the ongoing fore ign proceedings, the district court also 3 held that the informati on the Funds sought was n ot “for use” in a fore ign 4 procee ding, because the Funds were n ot a party to any of the pending 5 procee dings, and there was no “discern ible procedural mechanism” where by the 6 discovered material would actu all y be use d in the foreign proce edings. Spec ial 7 App’x 14. The district court held, moreover , that the Funds had failed to 8 demonstrate that they wer e “interes ted pers on[s]” in the contex t of the pending 9 foreign proc eedings, be cause they had n o role in those pr oceedings and did not 10 establish that they had a right to submit evidence to the for eign tribunals in 11 question. I d. 18. Although acknowledging that a non-party can be an “interested 12 pers on” under the statute, the district court held that simply being a creditor of a 13 debtor that is the subjec t of a li qui dation proceeding is not enough to confer such 14 status. 15 With respect to the conte mplat ed proce edings, although the Funds had

The court rejected the Funds’ argument that the international firms are 3 found in the SouthernDistrict of New York be cause se veral of their top official s reside in Manhattan, holding that a corporate entity is not found in a j udici al district m ere ly because cer tain high-ranking executives reside the re. 81 retained counse l to investigate and prose cute their claim s in the planned 2 procee dings, the district court held that a “di spositive ruli ng by a fore ign tribunal 3 . . . [was not] within reasonable contemplation.” I d. 17. 4 4 Having concluded that the Funds fail ed to meet the statutory requirements 5 that establish the court’s authority to order discover y under § 1782, the district 6 court did not reach the discr etionary factors that deter mine whether to grant the 7 applicati on. The Funds appe aled. 8 DISCUSSION 9 I. Statutory Requi rements 10 28 U.S.C. § 1782 pr ovides, in pertinent part: “The district court of the 11 district in which a pers on res ides or is found may order him t o . . . produce a 12 document . . . for use in a proce eding in a foreign or international tribunal . . . 13 upon the applicati on of any interes ted pers on . . . .” We have summarized the 14 statute as setting forth three r equirements: that “(1) the perso n from whom 15 discovery is sought res ides (or is found) in the district of the district court t o 16 which the applicati on is made, (2) the discovery b e for use in a proceeding be fore

The district court also questioned, but did not decide, whether the 4 documents the Funds sought wer e located in the United States. 91 a foreign tribunal, and (3) the applicati on be made b y a foreign or intern ational 2 tribunal or any interested pe rson.” Br andi-Dohrn v. IKB Deutsche Industriebank 3 AG, 673 F.3d 76, 80 (2d Cir. 2012). Once the s tatutory requi rements ar e met, a 4 district court m ay order discovery under § 1782 in it s discretion, taking int o 5 consideration the “twin aim s” of the statute, namely, “providing effici ent means 6 of assistance to participants in internationalli tigation in our federal courts and 7 encouraging fore ign countries by example to provide simil ar means of as sistance 8 to our courts.” In re Metallgesellschaft, 121 F.3d 77, 79 (2d Cir. 1997) (internal 9 quotation marks omi tted). Because the district court her e denied the Funds ’ 10 § 1782 applicati on solely on statutory grounds, and did not reach the 11 discretionary factors, our review is de novo . See In re Applicati on for an O rder 12 Pursuant to 28 U.S.C. § 1782 to Con duct Discovery for Use in Foreign 13 Proceedings, 773 F.3d 456, 459 (2d C ir. 2014); In re Edelman, 295 F.3d 171, 175 (2d 14 Cir. 2002). 15 II. Analysis 16 The international firm s contend, and the district court held, thatno 17 discovery can b e orde red as to the m, because they ar e not “found” in the 18 SouthernDistrict of New York, whe re the ap plication was made. We need n ot 101 addres s that argument, however , because we conclude that the Funds have failed 2 to establish that the discovery they se ek is “for use” in a for eign procee ding. 3 Since that failu re de feats the Funds’ app li cation as to all the defen dants, 4 including the U.S. firms, who conce dedly arefound in the District, we procee d 5 directly to that

issue. 5 6 To satisfy the second and third statutory re qui rements, an ap plicant for a 7 § 1782 order must be an “intereste d pers on,” and must establish that the 8 discovery sought is “for use in a proceeding be fore a for eign tribunal.” Brandi9 Dohr n, 673 F.3d at 80. The Supre me Court analyzed these statutory requirements 10 in IntelCorp . v. Advanced Micro De vices, Inc., 542 U.S. 241 (2004). In that case, 11 the § 1782 applicant had fil ed an antitrust complaint against Intel with the 12 Directorate -General for C ompetiti on of the Europe an Commission. Id. at 246, 13 250. That compl aint trig gered a prelimi nary investigation by the Directorate-

For the same r eason, we need n ot address defendan ts’ argument that the 5 U.S. firms are no t proper recipients of a subpo ena issued pur suant to § 1782, because they are n ot in possession of the doc uments that the Funds seek. At least where a non-frivolous reaso n has be en given for ave rring that the re cipient posses ses the documents sought, we are s keptical as to whether such a contention is proper ly resolved on an ex parteapplicati on for discover y, rather than on a more fully developed recor d gener ated by, for e xample, a moti on to quash or a res ponse to the s ubpoena as serting that no res ponsive documents have be en found. 111 General into the all eged anti-competiti ve beh avior. In that investigation the 2 applicant, as i niti ator of the complaint, had the right to present evidence . Id. at 3 254, 256. The investigati on would ul tim ately l ead to a formal writt en decision on 4 whether to pursue the complaint. If the Dire ctorate-Gener al decli ned to proce ed, 5 or if the EuropeanCommission fai led to sustain i ts complaint, the § 1782 6 applicant coul d seek r eview of that decision in the European courts. Id. In li ght 7 of that procedure , the Supre me Court ruled, the applicant “ha[d] a significant 8 role in the proce ss,” including variou s “participati on rights” in the proce eding. 9 Id. at 256. Moreover, the C ourt concluded, the applicant “coul d ‘use’ evidence in 10 the reviewing courts . . . by s ubmitting i t to the Commi ssion in the curre nt, 11 investigati ve stage,” and thenrelying on that evidence bef ore the Commission 12 itself and the reviewing courts. Id. at 257-58. The Supreme C ourt thus concluded 13 that the applicant “q uali fie[d] as an ‘interes ted pers on’ withi n any fair 14 construction of that term,” id. at 256, and that the discovery so ught was “for use 15 in a foreign or international tribunal,” i d. at 257. 16 We make two preliminary obs ervations about the Supr eme Cour t’s 17 decision in Int el. First, the Court did not lay down minimumrequirements or 18 tests to be met in determining whether the party see king discovery is an

121 “interested pe rson” or whether the discovery is sought “for us e” in a foreign 2 procee ding. The Court appear ed to regar d the case b efore it as an easy one, in 3 effect finding that the facts befor e it were sufficient to satisfy the requirements of 4 the statute, and not suggesting that facts identi cal to those in Int el were ne cessar y 5 to meet those re qui rements. S econd, the C ourt’s analysis suggests that, while the 6 “interested pe rson” an d “for use” r equirements are indepe ndent, ther e is 7 considerab le overlap betwee n them. The applicant’s “partici pation rights” in 8 Intel, on which the Court relied in findi ng that the applicant was an “int ere sted 9 pers on,” prominently incl uded the applicant’s abili ty to use the evidence it 10 sought in the U.S. courts be fore the foreign administrati ve tribunal and courts by 11 submitt ing the evidence to the investigating agency in the foreign procee dings. 12 A. Ongoing Foreign Procee dings 13 The defen dant firms argue that the Funds are not “interested pe rson[s ]” 14 with respect to the ongoing proce edings in Saudi Arabia, Bahrain and the 15 Cayman Islands, because they lack the kind of “partici pation rights” possess ed 16 by the applicant in I ntel. It i s unquestionably true that the Funds do not have 17 participati on rights simil ar to the § 1782 applicant in that case. The Funds have 18 made no showing that they are ab le to prese nt evidence to any of the tribunals

131 conducting those proce edings, or to appeal or othe rwise see k further r eview, in 2 courts or othe r institutions, of any decision reache d in those proce edings, as the 3 applicant coul d do with respect to the C ommi ssion proce edings in Intel. I f such 4 rights are ne cessar y for an en tity to constitut e an “interes ted pers on” within the 5 meaning of § 1782, the Funds do not qual ify. 6 We are cautious about reaching that conclusi on in the abse nce of a ne ed to 7 reach the question, however. As noted ab ove, the Intel Court did not state that 8 such rights were neces sary for an applicant to consti tute an “interested pe rson,” 9 appearing to find that “participation rights” such as those pos sess ed by the 10 applicant there qual ified i t as an interested p erso n “withi n any fair construction 11 of that term.” Id. at 256. M oreove r, in rejecting Intel’s argument that “i nteres ted 12 pers on[s]” under the statute must be “li tigants” or formal parties to a proceeding, 13 the Cour t cited wi th approval the exp ansive definiti on provided by H ans Smit, a 14 leading academi c commentator on the statute who played a role in its drafti ng. 15 Id. at 256-57. Professor S mit maint ained that the phrase “any interested p erso n” 16 is “intended to incl ude not only li tigants before for eign and international 17 tribunals, but also foreign and international offi cials as wellas any other pers on . 18 . . [who] merely posse ss[es ] a reas onable interes t in obtaining the assistance.”

141 Hans Smit, International Li tigation Under the United States C ode, 65 Colum. L. 2 Rev. 1015, 1027 (1965). 3 The Funds argue on appeal that they are “intere sted per son[s]” in that 4 broade r sen se, in that they have a re asonable intere st in obtaini ng judici al 5 assistance in the ongoing fore ign proceedings. They b ase that argument on their 6 substantial fi nancial i nteres t in the entiti es that are the subject of the ongoing 7 procee dings, their abili ty to i nfluence those p rocee dings through the De legate or 8 trustees p ursuing clai ms in the respe ctive proceedings, and b ecause of the ir 9 status as creditors of the Saad and AHAB affiliat es be ing li qui dated in the 10 Cayman Islands and Bahrain. 11 Prelim inarily, we doubt that the Funds’ financial interest in the outcome of 12 the fore ign proceedings alone could be s uffici ent to confer “interested pe rson” 13 status under the s tatute. Various entit ies may have a financialstake in li tigation 14 to which they have no direct conne ction: Shareholder s in a company facing a 15 products liabil ity sui t are likely t o have a financial i nteres t in the outcom e of that 16 suit; m ulti ple competit ors may have a financial int ere st in an antit rust case 17 brought by the government; a wide range of media compani es may have a 18 financialinterest in a libel case involv ing one newspap er. Most legal cases

151 involve such extern ali ties and have impli cations, incl uding fi nancial ones, for 2 pers ons be yond the parties for mally participating in the case. C ongres s cannot 3 have intended to confe r “interes ted pers on” status on all possible amici curiae 4 when it passed § 1782. 6 5 Whether the Funds are “interested pe rson[s ]” based ontheir alleged abili ty 6 to put evidence befor e other pers ons who areparties to the fore ign proceedings, 7 or by dint of their status as cre ditors in the li qui dation acti ons, are closer 8 questions. On the one hand, the abili ty sim ply to pass on information to parti es 9 in a proceeding, without more, cannot confer “interested pe rson” s tatus any 10 more than the ab il ity of amicus counsel to pass along evidence an d arguments to 11 counsel rep rese nting one of the parties in liti gation. On the other hand, an 12 established rightto provide evidence and have the par ty consider it, as the § 1782 13 applicant had i n Intel, 542 U.S. at 256, or a recognized r elationship, such as that of

The Funds’ re li ance on Es ses v. Han ania, 101 F.3d 873, 875-76 (2d Cir. 6 1996), is unavail ing. There, we r ejected an ar gument that “a potenti al beneficiary of an estate sh ould not be recognized as an interested p arty.” But the bene ficiary in that case was also a partyto the foreign pro ceedings. Se e id. at 875; accord, Akebia Therape utics, I nc. v. FibroGen, Inc., — F.3d —, 2015 WL 4284817, at *2 (9th Cir. July 16, 2015) (rejecting argument that appli cant was not “interested pers on” wher e it was “a party to the foreign proce edings underlying this case”). We have ne ver he ld, nor even s uggested, that a mere financial int ere st confer s “interested pe rson” s tatus under § 1782. 161 an agent and pr incipal, see Lan caster Factoring C o. Ltd. v. Mangone, 90 F.3d 38, 2 42 (2d Cir. 1996) (agent of trus tee in bankruptcy pr oceeding is “interested 3 pers on” for pur poses o f § 1782), may be sufficient to make an otherwise strange r 4 to the procee ding an “interested pe rson.” S imi larly, the role of a creditor under 5 the relevant jurisdiction’s lawmight confer c ertain proce dural rights that al low 6 the cre ditor to partici pate and submit evidence in the proce eding. See, e .g., 11 7 U.S.C. § 1109(b ) (under U.S . bankruptcy law, “[a] party in interest, includi ng . . . a 8 creditor . . . may raise and may appear and be h eard on an y issue in a case under 9 this chapter”). 10 We nee d not decide whether any of these circumstances might, in an 11 appropr iate case, ren der a par ty an “interested pe rson” within the meaning of 12 the statute, however , because even if the Funds qualify for that designati on, they 13 have identified no way in whi ch they can “use ” the evidence the y seek in any of 14 the ongoing foreign pro ceedings. Without some means of injecting the evidence 15 into the proceeding, a § 1782 applicant cannot show that it has a role in the 16 procee ding, such that it may “use” the information, or, as we have r ecently said, 17 employ i t “wit

h some advantage.” Mees v. Buiter, — F.3d —, 2015 WL 4385296, 18 at *4 (2d Cir. July 17, 2015). Consequently, even ass umi ng that the Funds are

171 “interested pe rson[s ]” in the pending proce edings in Saudi Arabia, the Cayman 2 Islands, and Bahrain, we agre e with the district court that their applicati on fails to 3 satisfy the statute’s “for use” r equirement, because the Funds have not met their 4 burdenof establishing that they are in a position to u se the e vidence they se ek 5 through their § 1782 applicati on in those ongoing fore ign proceedings. 6 The Funds’ primary argument that the information they seek re garding 7 Saad’s and AHAB’s financialstatus is “for use” in the pen ding proceedings is 8 that such informati on willbe “highly relevant” to those pr oceedings. Appe ll ants’ 9 Br. 33. That argument is mi splaced. The re levance of the information sought to 10 the subject of the pr oceeding is not sufficient in and of i tself to authorize the 11 district court to order discovery. By adopting the phrase “f or use,” C ongres s 7 12 plainl y meant to require that § 1782 appli cants show that the evidence sought is 13 “something that wi llbe employed with some advantage or se rve some use in the

The relevance of the information sought maybe ne cessar y, however, 7 insofar as it is diffi cult t o conceive how information that i s plainl y irrelevant to the fore ign proceeding could be said to be “for use” in that procee ding. Cf. In re Che vron C orp., 633 F.3d 153, 162 (3d C ir. 2011) (“Inasmuch as relevant evidence is presumptively di scover able, the party oppos ing discovery under s ection 1782(a) has the b urden of de monstrating offense to the for eign jurisdiction, or any other facts war ranting the denial of a particul ar applicati on.” (internal quotation marks and alterations omi tted)). 181 procee ding.” Mees, 2015 WL 4385296, at *4. The key question, therefor e, is not 2 simpl y whether the information sought i s relevant, b ut whether the Funds wil l 3 actuall y be able to usethe information i n the proc eeding. Framing the question 4 that way shows that the Funds’ asse rted re lati onships to the par ties in the foreign 5 procee dings and their alleged participation rights are insufficient to establi sh that 6 they willbe able to use the evidence ob tained as required by the statute. 7 In the procee dings befor e the Saudi quasi-ju dicialcommi ttees curr ently 8 being pursue d by the GB1 Delegate, the Funds asser t that a 25% stake in the GB1 9 sukuk

is necess ary to direct the De legate’s actions, but they concede that they 10 hold only a 20% stake. Conse quently, the Funds are not in a positi on to direct the 11 Delegate to consider their evidence or submit that evidence to the tribunal. Even 12 assuming that the Funds have the ability to submit informati on to the De legate, 13 who can then de cide whether or not to use that informati on, that does not 14 establish that the informati on is “for use” in a for eign procee ding; it establishes, 15 at best, that the Funds can fur nish information in the hopethat it might be used . 8

We assume without decidi ng that the quasi-j udici al comm itt ees con stitut e 8 a foreign “tribunal” for purpos es of the s tatute. The Funds do not argue, however , that the Delegate itself, li ke the Dire ctorate-Gener al of the European Commission i n Intel, can be re garded as anagency or tr ibunal; the Delegate rather appears to be in the nature of a tr ustee who acts on b ehalf of the holders of 191 That is no different from a third party providing informati on to a private litigant 2 that it

believes might be useful in a law suit, or a witness ap proaching a 3 prose cutor’s office claim ing to have knowledge of a crime. Such information 4 might be re levant or interesting to the rec ipient, but i t is not “for use” in any 5 procee ding in whi ch the recipientis a party unless the re cipient takes some 6 further, indep enden t action to introduce it. 7 The Funds also allege that they “may submi t probative evidence to the 8 foreign tribunal,” App’x 138, pre sumably m eaning directly to the Saudi 9 commi ttees, but they do not ex plain how they are in any position to have the 10 commi ttees consider that evidence. They state in their br ief on appeal (but did 11 not argue or p rese nt any evidence to the district court) that they are member s of a 12 steer ing comm itt ee of AHAB cr editors “see king to resolve debts owe d by 13 AHAB.” Appellants’ Br. 9. But they provide no information on what role, if any, 14 that steering commit tee plays in the Saudi procee ding or whether the steer ing 15 commi ttee has any ab il ity t o put evidence be fore the quasi-j udici al comm itt ees. 9

interests in the sukuk . Counse l for the Funds also stated for the first tim e at oral argument that 9 the Funds are part of a commit tee of cer tifi cate-holders of the GB1 sukuk that collecti vely hold a greater-than-25% interest in the sukuk , and there fore have the 201 The Funds accor dingly fai l to establi sh that any of the evidence they might obtain 2 could be used in the proc eedings in Saudi Arabia. 3 Simi larly, wi th resp ect to the proce edings to li qui date assets in the C ayman 4 Islands and Bahrain, the Funds ass ert various par tici pation rights that we may 5 assume arguendo grant them interested pe rson s tatus, but that upon examinati on 6 reve al no mechanism by which they coul d use any information obtained through 7 a § 1782 order in the li qui dation proceedings. Sp ecifical ly, the Funds asser t that 8 their status as cre ditors in the Cayman Islands proceed ing authorizes them to 9 “request the re moval of an offi cial l iquidator; coordinate with other inves tors to 10 request that the liq uidator apply t o the court for a discove ry orde r[;] re quest the 11 abili ty to partici pate in an oral examination; appl y to the court with respect to the 12 exer cise or pr oposed e xer cise of the liquidators’ powers; . . . and s eek to inspect 13 the company’s re cords.” Id. 11-12 (internal quotati on marks and citations 14 omit ted). As to the Bahraini proce eding, the Funds simil arly asser t that they 15 “have the ab il ity t o challenge befor e a competent court of law any propos al or

abili ty to di rect the GB1 De legate. That argument has beenforfeited. Se e United States v. Yousef, 327 F.3d 56, 115-16 (2d C ir. 2003) (argument forfeited when n ot asser ted in ini tialappellate brief). 211 decision made by the liq uidator.” Id. 13. 10 2 Allof these s upposed par tici pation rights all ow the Funds, at bes t, to 3 “seek” or “request” to participate in the proceeding, or, pe rhaps, to challenge the 4 li qui dator’s decision in a separateprocee ding. See In re Ishihara Che m. Co., 251 5 F.3d 120, 126 (2d Cir. 2001) (evidence sought was not for use in proceeding that 6 had concluded, and was instead for use in new, se parate pr oceeding), abr ogated 7 on other gr ounds by Intel, 542 U.S. 241. Contr ast that to the right of the appli cant 8 in Intelto seek r eview of the agency’s determination within the proceeding itself , 9 and thus to use the evidenc e obtained through its § 1782 applicati on in that 10 procee ding. 542 U.S. at 257 (appli cant “could ‘use’ evidence in the re viewing 11 courts . . . by sub mit ting i t to the Commi ssion in the curre nt, investigati ve 12 stage”). Undoubtedly, information that the Funds could obtain regar ding the 13 firms’ audit s of the conglomerates might be helpful to the trustees in the 14 li qui dation proceedings in deter mining the prop er distribution of the 15 conglomerates’ asse ts. To that end, however, there is nothing pre venting the 16 trustees – or the GB1 Delegate in the Saudi procee ding – from seeking discovery

The Funds also asse rt that their status as creditors in both liqui dation 10 procee dings entitl es them to rece ive periodic reports r egarding the pr oceedings. 221 in U.S. courts pursuant to § 1782. Such infor mati on might al so be us eful to the 2 Funds in determining whether to attempt to chall enge as pects of the liqui dation. 3 But that does not im ply that there is any way for the Funds to introduce that 4 informati on as evidence in the li qui dation proceedings or on appeal. The Funds 5 accordingly have failed to establi sh that any of the evidence they see k could 6 actuall y be use d in any of the foreign pr oceedings that were pending at the time 7 they made their applicati on. 8 Because the Funds failed to show any way that they could pu t before the 9 foreign tribunals the information they sought to discover, the district court 10 corre ctly conclu ded that the information was not “for use” in a foreign 11 procee ding. We conse quentlyfind no err or in the district court’s conclusion 11

We have war ned that district courts should avoid inqui ring into foreign 11 evidentiary rules, see Brandi-Dohr n, 673 F.3d at 82, so as to keep the asses sment of § 1782 applicati ons from be coming a “battl e-by-affidavit of int ernational legal expe rts.” Euromepa S .A. v. R. Esmerian, Inc., 51 F.3d 1095, 1099 (2d Cir. 1995). The Funds interpr et the district court’s statement that there was no “discer nible procedur al mechanism” for int roduction of the discovere d material as such an inqu iry into foreign admi ssibili ty standards. We disagre e. Whethe r an applicant wil l be able to furnish the material sought to the foreign tribunal, so that the material m ay be “employed with some advantage or se rve some use in the procee ding,” Mees, 2015 WL 4385296, at *4, is a separate question from whether the discovere d material w il l be admissiblein the foreign proce eding. The district court’s demand that the Funds identify some “discernible proce dural mechanism” for introducing the evidence they sought simply reflects the burde n 231 that the evidence sought he re was n ot “for use” in the ongoing fore ign 2 procee dings. 3 B. Planned Proceedings 4 In addit ion to the proceed ings that were ex tant at the ti me they made their 5 applicati on, the Funds ass erted b efore the district court that they intended to use 6 the information they sought in three actions that they planned to initiate: 7 (1) direct claim s bro ught against Saad and AHAB befor e the Saudi quasi-ju dicial 8 Negotiable Instruments and Banking Disputes Committees, relating to 9 obligati ons under promissory notes and various debt instruments; (2) a claim in 10 English courts, sounding in tort and breach of c ontract, “against those 11 resp onsible for the faulty financialrepor ts that mi sled investors into purchas ing 12 interests in [the] GB1 [ sukuk ]”; and (3) re li ef from “the Kingdom of Saudi Arabia 13 or its agencies” for alleged discriminatory conduct agai nst foreign cr editors in the 14 settlement of debts owed b y the various investment instruments. App’x 133-34. 15 Assuming that the Funds would actuall y be par ties to these proc eedings, and on a § 1782 applicant to establi sh that it wi llhave some means ofactuall y using the evidence in the for eign procee ding. The inquiry is no more exacting than the Supre me Court’s discussion of “par tici pation rights” in Intel. See 542 U.S . at 256- 57. 241 that the informati on sought through their § 1782 application woul d be employed 2 to prove their claims, there is no question as to these pr oceedings that the Funds 3 meet the “interested p erso n” and “for use ” requirements. The question instead 12 4 is whether the planned actions are “pr oceeding[s] in a fore ign or international 5 tribunal” wi thin the meaning of the statute. 6 In Intel, the Supre me Court rejected the view, then pr evailing in some 7 Courts of App eals (including this one), that a § 1782 applicant coul d satisfy the 8 “for use in a pr oceeding be fore a for eign tribunal” requi rement only when 9 “adjudicative procee dings are ‘pen ding’ or ‘imm inent.’” 542 U.S. at 259, quoting 10 In re Ishihara Ch em. Co., 251 F.3d at 125. Instead, the Cour t held, the statute 11 “requires only that a dispositi ve ruling by the [tribunal] be within reasonable 12 contemplation .” Id. (emphasis added). The Cour t noted, citi ng Profess or Smit, 13 that “[i]tis not necess ary for the adjudicative procee ding to be pending at the

With respect to proc eedings be fore the Saudi qu asi-judi cial com mit tees, 12 the Funds somewhat cryp tical ly stated in their memorandum supporting the § 1782 applicati on that they “intend[ed] to instigateclaim s” befor e the commi ttees. App’x 110 (e mphasis added). It is not cl ear whe ther by “instigate” they meant to ini tiate, or whe ther they meant the ter m li terally as “to spur, urge on; to stir up, stim ulate, i ncite, goad,” Oxford English Dictionary 1044 (2d ed. 1989), i.e. , to insti gate someone elseto ini tiate such claims. If the intended meaning is the latt er, the Funds ’ role in any such proce eding, and accordingly their status as “intereste d pers on[s]” under § 1782, is dubious. 251 tim e the evidence is sought, but only thatthe evidence is eve ntuall y to be used in 2 such a proce eding.” Id. (int ernal quotati on marks and alterations omitt ed), 3 quoting Smit, International Liti gation, at 1026. 4 Two conclusions may be drawn from the Supr eme Cour t’s discussion of 5 the “for use ” requirement as it relates to procee dings that are contemplated, but 6 not yet initiated. 7 First, as the Cour t’s formulati on makes exp li cit, the planned procee dings 8 must be withi n reasonablecontemplati on. In other words , the applicant must 9 have more than a s ubjective intent to undertake some legal acti on, and instead 10 must provide some objective indici um that the action is being contemplated. In 11 this regard, our sister Circuits have stated that “a district court must insist on 12 reliable indications of the likel ihood that proceedings willbe instituted wi thin a 13 reaso nable time.” Appli cation of Consor cio Ecuatoriano de Telecomuni caciones 14 S.A. v. JAS For warding (USA), Inc., 747 F.3d 1262, 1270 (11th Cir. 2014) (internal 15 quotation marks omi tted); accord, In re Le tter of Request from the Cr own 16 Prosecution Ser v. of the U.K., 870 F.2d 686, 692 (D.C. C ir. 1989) (R.B. Gi nsbur g, J.) 17 (same). We ne ed not decide he re what pr ecisely an applicant m ust show to 18 establish such indicati ons; it suffices to obser ve that the Supre me Court’s

261 inclusi on of the word “r easonab le” in the “within reason able contemplati on” 2 formulati on indicates that the proceedings can not be mere ly speculati ve. At a 3 mini mum, a § 1782 applicant m ust prese nt to the district court some concrete 4 basis from which it can determine that the contemplated proceeding is more than 5 just a twinkle in counsel’s eye. 6 Second, the relevant question is whether “ at the time the evidence is 7 sought, . . . the evidence is eve ntuall y to be used” in a fore ign proceeding. Intel, 8 542 U.S. at 259 (emphasis added) (intern al quotati on marks omitt ed). In other 9 words, we as sess the indici a of whether the contemplated procee dings were 10 withi n reas onable contemplation at the time the § 1782 application was fil ed. At 11 oral argument, counsel for the Funds informed the Cour t that the acti on in 12 English court had finally beencommenced, and that the lit igati on was pending. 13 13 But we cannot consider that fact in asses sing whether the district court correctly 14 determined that the English lawsui t was not within reas onable contemplation at 15 the time the appli cation was fil ed. We must instead consider the facts as they

Counse l al so asse rted that the Cayman Islands liq uidati on proce eding 13 was, as of oral argument, no longer pending, and the contemplated proce edings befor e the Saudi quasi-ju dicialcommi ttees could be re solved by settlement befor e being initi ated. The Funds appe ar to have aban doned any ef fort to seek r elief directly from the Kingdom of Saudi Arabia. 271 were p rese nted to the district court. 2 Reviewing the record at that stage, it is apparent that all that the Funds 3 all eged be fore the district court was that they had r etained counsel and wer e 4 discussing the possibilityof init iating litigati on. Accordingly, at the tim e the 5 evidence was s ought in thi s case, the Funds had done littl e to make an objective 6 showing that the planned proce edings were withi n reas onable contemplation. I n 7 li ght of the substantial length of ti me betweenthe Saudi conglomerates’ default 8 in 2009 and the filing of the Funds’ § 1782 application i n 2014, we cannot say that 9 the district court erre d in determining thatthe anticipated proceedings wer e not 10 withi n reas onable contemplation at that tim e. 14

The Funds argue that the district court erred in drawing a distincti on 14 betweena foreign proc eeding being within reasonab le contemplati on and a “ dispositive ruling by a fore ign tribunal [being] wi thin reasonab le contemplati on.” Special App’x 17 (emphasis added). The Funds are c orre ct that that i s a disti nction without a difference . Intel held that § 1782 “requires only that a dispositi ve ruling . . . be within reasonable contemplation.” 542 U.S. at 259. But there is littl e daylight between a proce eding being within reasonable contemplati on and the r esolution of that proceeding – by either dispositive ruling or by se ttl ement – being within reasonable conte mplation. See Mee s, 2015 WL 4385296, at *5 (noting that § 1782 requi res o nly that the evidence sought under the statute be used “eventually” in a foreign pr oceeding, which “plainl y encompasse s use at any point in the procee ding”). Neverthe less, the district court did not rely on any such distincti on, and instead corr ectly determined, based onthe objective indici a befor e it, that the planned pr oceedings wer e not withi n reas onable contemplation. The court went on to state, however , that it 281 Our conclusion that the district court di d not err in findi ng, on the re cord 2 befor e it, that the pr ospective actions projected b y the Funds wer e not then 3 withi n reas onable contemplation does not preclude a new app li cation by the 4 Funds base d on new circumstances, including the now-pending English 5 li tigat ion. See Mee s, 2015 WL 4385296, at *7 (“[A] party may fil e a new 6 applicati on upon a significant change in circum stances.”). But those c hanged 7 circumstances must be br ought to the districtcourt’s attention in the first 8 instance, espe cially since they could affect the court’s weighing of the 9 discretionary factors, if it were to deter mine that the statutory requirements are 10 met. Now that the firms are on notice of the Funds’ intere st in discovery, there is 11 no longer a re asonable bas is for proce eding ex parte . Should such a new 12 applicati on be made, the refor e, the district court wil l have the ben efit, as it di d 13 not at the tim e of the initial ex parteapplicati on, of the full range of arguments

was concer ned that the Funds’ r equest was a mere fishing exp edition, and had the Funds actually initi ated one of their dire ct suits, that concern would be mitigated. Al though a district court i s entitled to scrutini ze the purp oses of the discovery re quest in i ts consideration of the discre tionary factors, see Intel, 542 U.S. at 264-65, we re iterate that, to meet the statutoryfactors, “the for eign procee ding need not be pending, so long as it is wi thin reasonab le contemplati on.” Mees, 2015 WL 4385296, at *5 (intern al quotati on marks omit ted). 291 made by the defe ndant firms, and should be in a better position to assess both the 2 statutory prere qui sites to the district court’s authority u nder § 1782 an d the 3 discretionary factors b earing on whethe r, if those pre requisit es are satisfied, the 4 district court wi llorder discovery to be p rovided. 5 CONCLUSION 6 For the for egoing reason s, the district court’s denial of plaintiffs7 appellants’ § 1782 appli cation i s affirmed.

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