In the

United States Court of Appeals

for the Seventh Circuit

____________________ 

No. 22-1463 

IN RE APPLICATION OF VENEQUIP, S.A., 

Petitioner-Appellant, 

v.

CATERPILLAR INC., 

Respondent-Appellee. 

____________________ 

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division. 

No. 21-cv-6297 — Robert M. Dow, Jr., Judge. 

____________________ 

ARGUED SEPTEMBER 29, 2022 — DECIDED OCTOBER 10, 2023 

____________________ 

Before SYKES, Chief Judge, and ROVNER and JACKSONAKIWUMI, Circuit Judges. 

SYKES, Chief Judge. For many years, Venequip, S.A., a 

Venezuelan heavy-equipment supplier, sold and serviced 

products made by Caterpillar Inc., the Illinois-based manufacturer of industrial equipment and machinery. Venequip’s

dealership was governed by sales and service agreements

with Caterpillar Sàrl (“CAT Sàrl”), a Swiss subsidiary of

Caterpillar. In 2019 CAT Sàrl terminated the dealership, 
2 No. 22-1463 

triggering international litigation. The contracts contain 

forum-selection and choice-of-law clauses that direct all 

disputes to Swiss courts for resolution under Swiss law. In 

October 2021 Venequip commenced court proceedings

against CAT Sàrl in Geneva, Switzerland, alleging breach of 

contract. 

In the months that followed, Venequip filed a flurry of 

applications in federal district courts across the United States

seeking broad discovery under 28 U.S.C. § 1782(a) from 

Caterpillar and its employees, dealers, and customers.

Section 1782(a) authorizes district courts to order any person 

who resides or is found in the district to give testimony or 

produce documents “for use in a proceeding in a foreign or 

international tribunal.” This appeal concerns Venequip’s 

§ 1782(a) application in the Northern District of Illinois 

seeking wide-ranging discovery from Caterpillar, CAT Sàrl’s 

parent. 

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

247 (2004), the Supreme Court explained that “§ 1782(a) 

authorizes, but does not require” the court to provide judicial assistance to proceedings in foreign tribunals. The Court

identified four factors that may be relevant to the judge’s 

exercise of discretion under the statute. The factors generally

concern the applicant’s need for discovery, the intrusiveness 

of the request, and comity considerations. Id. at 264–65. 

Ruling on Venequip’s application, the district judge addressed the Intel factors and added two more: (1) the parties’ 

contractual choice of forum and law; and (2) Caterpillar’s 

agreement to provide discovery in the Swiss court. After 

weighing these considerations, the judge denied the application.
No. 22-1463 3 

Venequip argues on appeal that the judge misapplied the

Intel factors. Caterpillar responds that subsequent developments in the Swiss court may have mooted this appeal and, 

alternatively, that the judge’s decision was faithful to the 

Court’s instructions in Intel. The appeal is not moot, and the 

judge appropriately weighed the Intel factors and other 

permissible considerations in denying Venequip’s § 1782(a)

application. We affirm.

I. Background

In 2004 Venequip became an authorized distributor of

Caterpillar products in a territory primarily, though not 

exclusively, covering Venezuela. Venequip’s dealership was 

governed by distribution and service agreements with

Caterpillar subsidiaries—first Caterpillar Americas SARL

and then CAT Sàrl, Caterpillar’s Swiss subsidiary.

In 2019 CAT Sàrl terminated Venequip’s dealership. The 

reasons are vigorously disputed. The details are not directly 

relevant here, but in brief: CAT Sàrl says that Venequip 

defaulted on its outstanding loan obligations; Venequip 

accuses CAT Sàrl of breach of contract. The disagreement 

has spawned litigation that spreads from Switzerland to 

district courts across the United States. 

The contracts between Venequip and CAT Sàrl include 

forum-selection and choice-of-law provisions that require

the parties to resolve disputes in Swiss courts under Swiss 

law. In October 2021 Venequip lodged its grievance about 

the termination in the Court of First Instance in Geneva, 

Switzerland. 

Soon after initiating the Geneva proceedings, Venequip 

filed nine § 1782(a) applications in district courts in the 
4 No. 22-1463 

United States, including a request in the Northern District of 

Illinois seeking broad discovery from Caterpillar. Venequip 

asserted that the parent company “has discoverable information that will assist in the ongoing proceedings and 

investigations in Switzerland.” The “discoverable information” covers 22 categories of documents and 29 deposition topics.

The district judge denied the application. Addressing the 

factors identified in the Supreme Court’s Intel decision, the 

judge first noted that Caterpillar was not a party to the Swiss 

litigation, which “slightly” favored granting the § 1782(a) 

request. He then considered whether exporting Americanstyle discovery would upset Swiss procedural norms, particularly given the extreme breadth of Venequip’s request. 

The parties generally agreed that discovery in American

courts takes place much “earlier and in a more robust manner than would be permitted under Swiss law,” but the 

degree to which the Swiss courts would be receptive to 

evidence gathered under § 1782(a) was not clear from the 

parties’ submissions. Still, based on the significant differences in the two nations’ discovery practices, the judge 

reasoned that the Swiss courts would likely view the 

“wholesale importation” of U.S. discovery “warily and with 

a degree of skepticism.”

The judge next addressed whether Venequip’s request 

appeared to be an attempt to circumvent limits in the foreign 

tribunal’s law. This factor, the judge held, strongly favored 

Caterpillar. He placed special emphasis on the forumselection and choice-of-law provisions in Venequip’s contracts with CAT Sàrl, noting that the parties were sophisticated international companies and were undoubtedly aware 
No. 22-1463 5 

of the differences between Swiss and U.S. procedural and 

substantive law when they negotiated these multimilliondollar contracts.

Finally, the judge considered the intrusiveness and burdens imposed by the discovery request. He described 

Venequip’s application as “a series of typically broad and 

comprehensive discovery requests seeking ‘all documents or 

communications’ ‘regarding’ or ‘related to’ various aspects of 

the business dealings between Venequip and CAT [Sàrl] for 

the better part of two decades.” As the judge put it, this was 

not “a surgically measured request for particularized information.” The judge also assigned weight to Caterpillar’s 

pledge to cooperate with discovery in the Swiss court, 

emphasizing that he anticipated good-faith compliance with 

that commitment. 

On balance and considering all these factors, the judge 

denied Venequip’s § 1782(a) application. At the end of his 

decision, he emphasized that he would “defer to any expression by the Swiss tribunal of its views” regarding the scope 

of discovery needed to resolve the parties’ dispute under 

Swiss law. And he said that Venequip could return with a 

renewed application if Caterpillar declined to cooperate 

“within th[e] parameters” of the Swiss litigation. 

Venequip appealed the judge’s ruling. After briefing was 

completed, Venequip filed a motion asking us to take judicial notice of certain intervening developments in the Swiss 

proceedings. The Swiss Code of Civil Procedure requires 

litigants to attempt “conciliation” (i.e., mediation) before a 

plaintiff may file a “Statement of Claim”—the pleading that 

formally initiates adversarial proceedings. In the judicialnotice motion, Venequip reported that it had not filed a 
6 No. 22-1463 

statement of claim by the deadline set by the Swiss court, 

explaining that it chose not to do so because it “lack[ed] 

important evidence on the extent of its damages.” Venequip 

also said that it had filed a “standalone Request for Evidence” from CAT Sàrl in the Swiss court seeking a subset of 

the records it had requested from Caterpillar in the § 1782 

application at issue here. Finally, Venequip asserted that it 

will “commence a new conciliation proceeding” and “ultimately” file a statement of claim when it obtains evidence

from CAT Sàrl in response to its request in the Swiss court 

(or from Caterpillar if it prevails here). 

Caterpillar responded to the motion, agreeing that the 

two developments in the Swiss court—Venequip’s failure to 

file a timely statement of claim and its later request for 

evidence from CAT Sàrl—are proper subjects for judicial 

notice. Caterpillar objected, however, to taking judicial 

notice of Venequip’s asserted justification for missing the 

claim-filing deadline or its purported future litigation strategy. Those matters, the company argued, are not judicially 

noticeable facts because they cannot be “accurately and 

readily determined from sources whose accuracy cannot 

reasonably be questioned.” FED. R. EVID. 201(b). Caterpillar 

also suggested that Venequip’s “abandonment” of the Swiss 

proceedings (by failing to file a timely statement of claim) 

may moot this appeal.

II. Discussion

A. Mootness 

We begin, as we must, with Caterpillar’s suggestion of 

mootness. Article III of the Constitution limits the judicial 

power to the resolution of “Cases” and “Controversies,” 
No. 22-1463 7 

U.S. CONST. art. III, § 2, a limitation long understood to 

confine the federal courts to concrete disputes between 

parties with a personal stake in the litigation. Moore v. 

Harper, 143 S. Ct. 2065, 2076 (2023). The “case-or-controversy 

requirement subsists through all stages of federal judicial 

proceedings, trial and appellate.” Lewis v. Cont’l Bank Corp., 

494 U.S. 472, 477 (1990). Accordingly, “it is not enough that a 

dispute was very much alive when suit was filed; the parties 

must continue to have a personal stake in the ultimate 

disposition of the lawsuit.” Chafin v. Chafin, 568 U.S. 165, 172 

(2013) (quotation marks omitted). 

Mootness doctrine “addresses whether an intervening 

circumstance has deprived the plaintiff of a personal stake in 

the outcome of the lawsuit.” West Virginia v. EPA, 142 S. Ct. 

2587, 2607 (2022) (quotation marks and alterations omitted). 

“If an intervening circumstance deprives the plaintiff of a 

‘personal stake in the outcome of the lawsuit,’ ... the action 

can no longer proceed and must be dismissed as moot.” 

Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 72 (2013) 

(quoting Lewis, 494 U.S. at 477–78). In other words, a suit 

becomes moot “when the issues presented are no longer 

‘live’ or the parties lack a legally cognizable interest in the 

outcome.” Chafin, 568 U.S. at 172 (quoting Already, LLC v. 

Nike, Inc., 568 U.S. 85, 91 (2013)). 

Caterpillar contends that Venequip’s failure to file a timely statement of claim in the Swiss court means that it has 

abandoned the underlying foreign proceedings and no 

longer has a live stake in this § 1782 discovery application.

Alternatively, Caterpillar argues that Venequip’s actions in 

the Swiss court bear out the district court’s concerns about 
8 No. 22-1463 

circumventing Swiss procedural law, providing additional 

support for the judge’s decision on the merits. 

We accept the parties’ agreement that the two developments in the Swiss court—Venequip’s failure to file a timely 

statement of claim and its subsequent request for evidence 

from CAT Sàrl—are judicially noticeable facts. “Once formal 

briefing in an appeal has concluded, [the] parties are not 

prohibited from informing the court of important developments in related court proceedings (about which we may 

take judicial notice), so long as those developments have a 

direct relation to the matters at issue.” Loughran v. Wells 

Fargo Bank, N.A., 2 F.4th 640, 652 (7th Cir. 2021) (quotation 

marks omitted); see also Fosnight v. Jones, 41 F.4th 916, 922 

(7th Cir. 2022) (explaining that records of court proceedings 

are proper subjects for judicial notice under Rule 201(b)).

These intervening developments, however, do not moot 

this appeal. Caterpillar’s suggestion of mootness is keyed to 

the threshold requirements for a § 1782(a) application.

Section 1782(a) lists three necessary—but not sufficient—

conditions for a successful application. First, the person from 

whom discovery is sought must “reside” or be “found” in 

the district where the court is located. § 1782(a). Second, the 

discovery sought must be “for use in a proceeding in a 

foreign or international tribunal.” Id. And third, if a foreign 

tribunal itself does not request the discovery, the applicant 

must be an “interested person.” Id.

Caterpillar focuses on the second condition but overlooks 

that the Supreme Court has interpreted it quite generously. 

The statute doesn’t demand that the foreign “adjudicative 

proceedings [be] ‘pending’ or ‘imminent,’” only that they be 

“within reasonable contemplation.” Intel, 542 U.S. at 259.
No. 22-1463 9 

And here it’s clear that proceedings in Swiss court remain

“within reasonable contemplation.” Although Venequip 

failed to file a timely statement of claim in the court proceedings it commenced in October 2021, it may later renew or 

initiate new conciliation proceedings in the Swiss court. And 

its request for evidence from CAT Sàrl suggests that it 

intends to do so. 

Venequip’s Swiss discovery request asserts that the evidence it seeks from CAT Sàrl “is part of a dispute ... regarding distribution contracts for the sale and service of 

Caterpillar machinery and parts” and is necessary to assess 

“its chances of success” in the “substantive action it intends 

to bring against [CAT Sàrl].” This confirms that proceedings 

in the foreign tribunal are within reasonable contemplation 

notwithstanding the lapse in the proceedings Venequip 

initially commenced in October 2021. 

So the appeal is not moot. Rather, it continues to present 

a live controversy in which Venequip and Caterpillar have a 

personal stake.

B. Merits

With our jurisdiction secure, we proceed to the merits. 

Section 1782(a) authorizes the district courts to provide 

discovery assistance to foreign courts. In relevant part, 

§ 1782(a) provides: 

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 
10 No. 22-1463 

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.

The threshold statutory requirements are satisfied here. 

Everyone agrees that Caterpillar is “found” in the Northern 

District of Illinois and Venequip is an “interested person” 

entitled to pursue discovery assistance under § 1782(a). And 

as we’ve just explained, Venequip seeks evidence for use in 

current or future proceedings in the Swiss court. 

The parties’ dispute centers on a disagreement over the 

district court’s application of the Supreme Court’s Intel 

decision. Intel resolved several debates about the meaning of 

§ 1782. First, the Court declined to read the “interested

person” language narrowly to cover only litigants in the 

foreign proceeding. Intel, 542 U.S. at 256–57. In addition (and 

as we’ve noted), the Court held that an adjudicative proceeding need not be “pending” or “imminent” in a foreign 

tribunal but only “within reasonable contemplation.” Id. at 

258–59. The Court also addressed a divide in the lower 

courts about whether discovery assistance under § 1782(a) is

unavailable when the “interested person” would not have 

been able to obtain the requested evidence in the foreign 

jurisdiction. Id. at 259–62. The Court rejected this so-called 

“foreign discoverability” rule as incompatible with the 

statutory text. Id.
No. 22-1463 11 

Finally, the Court provided some guidance on how 

courts should evaluate § 1782(a) applications. The Court

explained that “a district court is not required to grant a 

§ 1782(a) discovery application simply because it has the 

authority to do so.” Id. at 264. Rather, the court has broad 

discretion to grant, trim, or deny a § 1782(a) request. Id. at 

264–65. The Court discussed several factors that warrant 

consideration in ruling on a request. The factors generally 

concern the applicant’s need for the discovery, the intrusiveness or burdens imposed by the request, and considerations

of comity, reflecting the international dimensions of the 

court’s decision. Id.

More specifically, the Court identified four factors that 

may be relevant to a court’s evaluation of a § 1782(a) application: 

First, when the person from whom discovery is 

sought is a participant in the foreign proceeding ... , the need for § 1782(a) aid generally is 

not as apparent as it ordinarily is when evidence is sought from a nonparticipant in the 

matter arising abroad. ... 

Second, ... a court presented with a § 1782(a) 

request may take into account the nature of the 

foreign tribunal, the character of the proceedings underway abroad, and the receptivity of 

the foreign government or the court or agency 

abroad to U.S. federal-court judicial assistance. ... [Third,] a district court could consider 

whether the § 1782(a) request conceals an attempt to circumvent foreign proof-gathering 

restrictions or other policies of a foreign coun-
12 No. 22-1463 

try or the United States. ... [And fourth,] unduly intrusive or burdensome requests may be rejected or trimmed.

Id.

Importantly, although the Intel factors inform and guide 

the court’s exercise of its statutory discretion, they are 

neither exclusive nor mandatory. Id. In other words, the 

district court enjoys broad discretion when deciding whether, and to what extent, to provide discovery assistance under 

§ 1782(a). 

With the legal framework now in place, we turn to the 

judge’s ruling on Venequip’s § 1782(a) application. Our 

review is deferential. See Heraeus Kulzer, GmbH v. Biomet, Inc., 

633 F.3d 591, 597 (7th Cir. 2011); see also Prestwick Cap. Mgmt., 

Ltd. v. Peregrine Fin. Grp., Inc., 727 F.3d 646, 664 (7th Cir. 

2013). We see no basis to disturb the judge’s careful weighing 

of the Intel factors and his measured decision to deny 

Venequip’s § 1782(a) application.

The judge’s analysis of the first Intel factor was quite nuanced. He recognized that Caterpillar is not a participant in 

the foreign proceeding, which tilted slightly in favor of 

Venequip. But he also noted that the parent–subsidiary 

relationship between Caterpillar and CAT Sàrl, coupled with 

Caterpillar’s commitment to cooperate with the discovery 

process in the Swiss court, diminished the weight of this 

factor. 

The second and fourth factors—the “nature of the foreign 

tribunal” and the intrusiveness of Venequip’s discovery 

requests—together seemed to tip the scales slightly in 

Caterpillar’s favor. After reviewing the Swiss authorities
No. 22-1463 13 

cited by the parties, the judge accepted Venequip’s claim that 

the Swiss courts would not consider evidence collected 

under U.S. discovery rules in a § 1782(a) proceeding “downright null and void.” But he considered this second Intel

factor with some caution, observing that the Swiss courts

“would approach the wholesale importation of American 

civil procedure warily and with a degree of skepticism, as 

American pre-trial discovery proceedings are alien to Swiss 

law.” At this point he found some overlap between the 

second and fourth Intel factors based on the sheer scope of 

the § 1782(a) request. Because Venequip had “cast its net 

widely,” the judge thought it “a matter of common sense 

that the broader the effort to obtain discovery in the U.S., the 

greater the affront to the Swiss tribunal.”

The judge’s evaluation of the third factor—the circumvention of foreign proof-gathering restrictions—proved to be 

the most important to his decision. At this step in the 

framework, the judge considered the parties’ contractual 

choice of forum and law. He reasoned that “Venequip finds 

itself unable to obtain robust early discovery not because it 

lost a race to the courthouse door ... but because it agreed ex 

ante to a particular forum and the set of rules that comes 

with that choice.” The judge acknowledged Intel’s rejection 

of a “foreign discoverability” rule. But he nonetheless 

thought it important that the parties—sophisticated international companies—had agreed to resolve their disputes in 

Swiss courts under Swiss law, with its more circumscribed

discovery procedures. On this reasoning, the judge concluded that “[t]he third factor ... strongly favors Caterpillar.”

This analysis reflects a faithful application of the Intel factors and a reasonable exercise of the judge’s wide discretion 
14 No. 22-1463 

under § 1782(a). Venequip resists this conclusion, arguing 

that (1) the judge improperly gave dispositive weight to the 

contractual forum-selection clause; (2) Caterpillar did not 

provide “authoritative proof” that the Swiss courts reject 

§ 1782(a) discovery assistance; and (3) if the judge thought 

the request was too burdensome, he should have narrowed 

it rather than rejecting it outright. Each argument requires 

only brief attention. 

Venequip criticizes the judge’s consideration of the 

forum-selection clause, arguing that he essentially imposed a 

“foreign discoverability” rule contrary to Intel. This argument both misconstrues the judge’s analysis and misses an 

important point in our circuit caselaw. Taking the latter 

observation first, our decision in Kulzer—issued long after 

Intel—specifically endorsed the consideration of a forumselection clause as a relevant and potentially important

factor in the § 1782(a) calculus. 633 F.3d at 595. We explained 

that a forum-selection clause “might indicate the parties’ 

preference for a court system that doesn’t contemplate the 

level of compulsory process available in America.” Id.

Moreover, the judge did not give dispositive weight to the 

forum-selection clause or “resurrect” the “foreign discoverability” rule, as Venequip claims. Rather, he pointed to the 

differences between Swiss and American procedural law, the 

sophistication of the parties, and our advice in Kulzer about 

the potential import of forum-selection clauses—all of which 

are relevant factors in assessing whether Venequip’s

§ 1782(a) application reflects an effort to escape the discovery limitations in the forum it freely and intelligently selected. That is, the judge examined permissible contextual 

factors to determine whether Venequip should be held to its 
No. 22-1463 15 

agreement to pursue discovery in Switzerland under Swiss 

rules, at least for the time being. That was not error.

Venequip next argues that Caterpillar failed to produce 

“authoritative proof” that Swiss courts reject U.S. discovery 

assistance under § 1782. But Intel did not instruct district 

courts to evaluate whether a foreign tribunal will always or 

absolutely reject § 1782 aid. The Court instead said that 

judges “may take into account the nature of the foreign 

tribunal, the character of the proceedings underway abroad, 

and the receptivity of ... the court ... abroad to U.S. federalcourt judicial assistance.” Intel, 542 U.S. at 264 (emphases 

added). This general guidance is not as rigid as Venequip 

seems to think, nor does it require “authoritative proof” of 

the foreign court’s hostility to § 1782 discovery assistance.

Rather, the Supreme Court’s nonexclusive list of potentially 

relevant factors gives the district court “great flexibility and 

discretion” in ruling on a request for § 1782 discovery assistance. In re Schlich, 893 F.3d 40, 50–51 (1st Cir. 2018). The 

judge determined that although the second Intel factor is 

essentially neutral here, there are good reasons to be cautious about the Swiss court’s receptivity to American-style 

discovery. We will not disturb that sensible conclusion. 

Finally, Venequip argues that the judge disregarded a different part of our decision in Kulzer in which we determined

that the district court in that case should not have wholly 

rejected the § 1782(a) applicant’s discovery request but 

instead required the parties “to negotiate ... over cutting 

down the request to eliminate excessive burden.” 633 F.3d at 

597. But again, the decision to grant a § 1782(a) request is 

highly contextual. In Kulzer the applicant could not obtain 

the discovery it needed in the foreign forum, and there was 
16 No. 22-1463 

no indication that the foreign tribunal worried about being 

“swamped” by excessive discovery. Id. at 596. And because 

no other factors weighed against granting discovery, we 

determined that the more appropriate course was to trim the 

applicant’s request rather than deny it altogether. Id. at 597. 

This case is not analogous. The judge’s decision here rests 

on case-specific inputs carrying different weights and degrees of importance. Of these, the judge found it particularly 

noteworthy that the parties had contractually selected Swiss 

courts and Swiss law, that Venequip had cast a very wide net

in its § 1782(a) request, that Swiss courts would likely be 

wary of the timing and breadth of American-style discovery, 

and that Caterpillar had agreed to comply with discovery in 

the Swiss court. At bottom, Venequip is asking us to reweigh 

these factors and substitute our own judgment for the district judge’s exercise of discretion. We decline the invitation.1

Before closing, we have one final observation. The judge’s 

careful wait-and-see approach is especially appropriate as an 

expression of respect for the prerogatives of the Swiss 

court—the forum freely and intelligently chosen by the 

parties—and the deference owed to its views about the scope 

of discovery needed to resolve this dispute. “After all, the 

animating purpose of § 1782 is comity ... .” ZF Automotive 

1 The Fifth Circuit recently summarily affirmed the denial of Venequip’s 

§ 1782(a) application in the Southern District of Texas seeking discovery 

from a privately held Caterpillar dealership. Venequip, S.A. v. Mustang 

Mach. Co., No. 22-20520, 2023 WL 5031480, at *1 (5th Cir. Aug. 7, 2023) 

(per curiam). The district judge there weighed the Intel factors in much 

the same way as the judge in this case. See Venequip, S.A. v. Mustang 

Mach. Co., No. 4:21-MC-2391, 2022 WL 3951173, at *2–4 (S.D. Tex. 

Aug. 30, 2022).
No. 22-1463 17 

US, Inc. v. Luxshare, Ltd., 142 S. Ct. 2078, 2088 (2022). Because 

the judge faithfully applied the Supreme Court’s instructions 

in Intel and reasonably exercised his statutory discretion, the 

district court’s judgment is 

AFFIRMED.