### In the 

# United States Court of Appeals
f

or the Seventh Circuit

____________________ No. 22-1463
I N RE A PPLICATION OF V ENEQUIP , S.A., Petitioner -Appellant ,

v.

C ATERPILLAR I NC ., 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

.

____________________
A RGUED S EPTEMBER 29, 2022

— D ECIDED O CTOBER 10, 2023

____________________

Before S YKES , C hief Judge , and R OVNER and J ACKSON

A KIWUMI , Circuit Judges

. S YKES , Chief Judge

. For m any years, Venequip , S.A., a Venezuelan heavy

- equipment supplier , sold and serviced products ma de by Caterpillar Inc., the Illinois

- based manufacturer of industrial equipment and machinery

. Venequip’s d ealership was governed by sales and service agreements with Caterpillar S àrl (“CAT Sàrl”) , a Swiss subsidiary of Caterpillar . I n 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 d isputes to Swiss courts for resolution under Swiss law . I n 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 th e United States seeking broad discovery under 28 U.S.C. § 1782(a) from Caterpillar and its employees, dealers, and customers. Section 1782(a) authorize s district court s to order a ny 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 ” t he court to provide judicial assistance to proceedings in foreign tribunal s. The Court identified four factors that may be relevant to the judge ’s exercise of discretion under the statute . T he 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 a ddress ed the Intel factor s and added two more : (1) the parties’ contractual choice of for um and law; and (2) C aterpillar’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 t he judge mis appli ed the Intel factors. Caterpillar responds that subsequent developments in the Swiss court may have moot ed th is appeal and , alternatively , that t he judge ’s decision was faithful to the Court’s instructions in Intel . T he appeal is not moot, and the judge appropriately weighed the Intel factors and other permissible considerations in den ying Venequip’s § 1782 (a) application

. We affirm. I. Background
I n 2004 Venequip became an authorized d istributor of Caterpillar products in a territory primarily , though not exclusively, covering Venezuela

. Vene quip’s dealership was governed by d istribution and s ervice a greement s with Caterpillar subsidiaries

— first Caterpillar Americas SARL and then CAT Sàrl , Caterpillar’s Swiss subsidiary.
In 2019 CAT Sàrl termi nated Venequip’s dealership . T he

reasons are vigorously dispute d. The details are not directly relevant here , but in brief: CAT Sàrl says that Venequip defaulted on its outstanding loan obligat ions ; Venequip accuses CAT Sàrl of breach of contract . Th e disagreement has spawned litigation that spreads from Switzerland to district courts across the United States

. The contracts between Venequip an d CAT Sàrl include forum

- selection and choice

- of

- law provisions that require the parties to resolve disputes in Swi ss 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 proceeding s, Venequip f iled nine § 1782(a) applications in district courts in the4 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.” T he “ discoverable information” cover s 22 categories of document s and 29 deposition topics.

T he district judge denied the application. A ddress ing 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 American

style discovery would upset Swiss procedural norms, particularly given the extreme breadth of Venequip’s re ques t. T he parties generally agreed that discovery in American courts takes place much “earlier and in a more robust manner tha n would be permitted under Swiss law ,” b ut 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. H e placed special emphasis on the forum

selection and choice

- of

- law provisions in Venequip’s contracts with CAT Sàrl, noting that the parties were sophisticated international companies and were undoubtedly awareNo. 22-1463 5

of the differences between Swiss and U.S. procedur al and substantive law when they negotiated these multimillion

dollar 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 seek ing ‘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.” A s 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, h e e mphasized that he would “defer to any expression by the Swiss tribunal of its views ” regard ing the scope of discovery needed to resolv e the parties’ dispute under Swiss law

. And h e said that Venequip could return w ith a renewed application if Caterpillar declined to cooperate “within th [e] parameters” of the Swiss litigation

. Venequip appeal ed the judge’s ruling . A fter briefing was completed , Venequip filed a motion asking us to take judicial notice of certain intervening developm ents in the Swiss proceeding s. 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 in itiates adversarial proceedings. In the judicial

notice motion , Venequip reported that it had not file d a6 No. 22-1463

st atement of c laim by the deadline set by the Swiss court , explaining t hat it chose not to do so b ecause 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 r equested from Caterpillar in the § 1782 application at issu e here

. Finally, Venequip a sserted that it will “commence a new conciliation proceeding” and “ultimately” file a s tatement of c laim 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 , agree ing that the
two developments in the Swiss court

— Venequip’s failure to file a timely s tatement of c laim and its later r equest for

e vidence f rom CAT Sàrl

— are proper subject s for judicial noti ce

. Caterpillar object ed , however, t o taking judicial notice of Venequip’s asserted justification for m issing 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 .” F ED

. R. E VID . 201 (b)

. Caterpillar also suggested that Venequip’s “aband on ment ” of the Swiss proceedi ng s (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 t he Constitution limits the judicial power to the r esol ution of “C ases” and “ C ontroversies ,”No. 22-1463 7

U.S. C ONST . 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) . T he “case

- or

- controvers y requirement subsists through all stages of federal judicial proceedings, trial and appellate.” Lewis v. C ont’l Bank Corp. , 494 U.S. 472, 477 (1990). Accordingly, “i t is not enough that a dispute was very much alive when suit was filed; the parties
must c ontinue 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)

. “I f an intervening circumstance deprives the plaintiff of a ‘personal stake in the outcome of the lawsuit,’ ... the a ction 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 s tatement of c laim in the Swiss court means that it has abandoned the underlying foreign proceeding s 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 about8 No. 22-1463

ci rcumventing Swiss procedural law , providing additional support for th e judge’s decision on the merits

. We a ccept the parties’ agreement that t he two developments in the Swiss court

— Venequip ’s failure to file a timely

s tatement of c laim a nd its subsequent request for e vidence from CAT Sàrl

— are judicial ly noticeable facts

. “Once formal briefing in an appeal has concluded, [ the ] parties are notprohibited from informing the court of important developments in related court proceedings (about which w e 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 C ir. 2022) (explaining that records of court proceedings are proper subjects for judicial notice under Rule 201(b)).

T hese intervening developments , however, do not moot this appeal. Caterpillar’s suggestion of mootness is keyed to the threshold requirement s for a § 1782(a) application. Section 1782(a) lists three necessary

— but not sufficient

— conditions for a successful application. First, t he 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, i f a foreign tribunal itself does not request the discovery, the applicant must be an “interested person.” Id. Caterpillar focuses on the seco nd 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 “withi n reasonable contemplation.” Intel , 542 U.S. at 259.No. 22-1463 9

And here i t’s clear that proceedings in Swiss court remain “within reasonable contemplation.” Alt h ough Venequip failed to file a timely s tatement of c laim in the court proceedings it commenced in October 2021 , it may later renew or initiate new conciliation proceedings in the Swiss court . And its r equest for e vidence 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] .” T his confirms that proceedings in the foreign tribunal are within reasonable contemplation notwithstanding the lapse in the proceedings Venequip initially commenced in October 2021

. So t he appeal is not moot. Rather, i t continues to present a live controversy in which V enequip and Caterpillar have a personal stake.

B. Merits With our jurisdiction secure, we proceed to the merits. Section 1782 (a) authorizes the district court s to provide discovery assistance to foreign courts

. In r elevant 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 adocument or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted10 No. 22-1463

before formal accusation. The order may be made pursuant to a letter rogatory issued, orrequest 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.

T he threshold statutory requirements are satisfied here

. E veryone agrees tha t Caterpillar is “found” in the Northern District of Illinois and Venequip is an “interested p erson” 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 appl ication of the Supre me Court’s Intel decision

. Intel resolved several debates about the meaning of § 1782. First, t he Court declined to re ad the “interest ed 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. T he 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 2 59–62. The Court rejected this so

- called “foreign discoverability” rule as inco mpatible with the statutory text

. Id.No. 22-1463 11

Finally, the Court provid ed some guidance on how courts should evaluate § 1782(a) applications. The Court

e xplained 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 26 4. Rather, the court has broad discretion to grant, trim, or deny a § 1782(a) request

. Id. at 264– 65. T he Court discussed seve ral 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 :
F irs t, when the person from whom discovery is sought is a participant in the foreign proceeding ... , the need for § 1782(a) aid generally isnot 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 th e nature of theforeign 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 th e § 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 f ourth, ] unduly intrusive or burdensome requests may be rejected or trimmed.
Id. Importantly, although t he 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 c ourt 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 defere ntial

. Se e 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). W e see no basis to disturb th e judge’s careful weighing of the Intel factors and his measured decision to deny Venequip’s § 178 2(a) application.

T he judge’s analysis of the first Intel factor was quite nuanced. H e 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 Swi ss court , diminished th e weight of this factor.

T he second and fourth factor s— the “nature of the foreign tribunal” and the intrusiveness of Venequip’s discovery requests

— together seemed to ti p the scales slightly in Caterpillar’s favor. After revi ewing the Swiss authoritiesNo. 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

. ” B ut 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 h e found some overlap between the second and fourth Intel factors based on t he 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 decisi on

. At this step in the framework, the judge con sidered 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 r eject ion of a “foreign discov erability ” rule . B ut he nonetheless thought it important that the partie s— 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 j udge 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 discretion14 No. 22-1463

under § 1782(a). V enequip r esists this conclusion , arguing that (1) the judg e improperly gave dispositive weight to the contractual forum

- selection clause ; (2) Caterpillar did not provide “authoritative proof” that the Swiss court s reject § 1782(a) discovery assistance ; and (3) if the judge thought th e req uest was too burdensome, he should have narrow ed it rather than rejecting it outright. Each argument requires only brief attention. Venequip criticizes th e 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 a nalysis and misses an important point in our circuit caselaw. Taking the latter observation first, o ur decision in Kulzer

— issued long after Intel

— specifically end orsed the consideration of a forum

selection clause as a relevan t and potentially important factor in the § 1782(a) calculus

. 633 F.3d at 595. We explained that a forum

- selection clau se “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, h e pointed to th e differences between Swiss and American procedural law, the sophistication of the parties , and our advice in Kulzer about the potential import of forum

- selection clause s— all of which

a re relevant factors in assessing whether Venequip’s § 1782(a) applicati on reflects an effort to escape the discovery limitations in the forum it freely and intelligently selected

. That is, t h e judge examine d permissible contextual factors to determine whether Venequip should be held to itsNo. 22-1463 15

agreement to pursue discovery in Switzerland under Swiss rules , at least for the time being

. Th at was no t 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 in struct 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. federal

court judicial assistance .” Intel , 542 U.S. at 264 (emphases added)

. This general guidance is not as rigid as Venequip

s eems to think , nor does it require “ authoritative proof” of the foreign court’s hostility to § 1782 discovery assistance. Rather, t he Supreme Court’s nonexclusive list of potentially relevant factors give s the district court “great flexibility and discretion” in ruling on a request for § 1782 discovery assistanc e. 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 cauti ous 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 pa rt 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 require d 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 context ual . In Kulzer the applicant could not obtain the discovery it needed in the foreign forum , and there was16 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 rest s
on case

- specific inputs carrying different weights and degrees of i mportance . 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, V enequip is ask ing us to reweigh the se factors and substitute our own judgment for the district judge’s exercise of disc retion. We decline the invitation. 1
Before clos ing, we hav e o ne final observ ation . T he judge ’s

ca reful wait

- and

- see approach is especially appropriate as a n 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 view s about th e scope of discovery needed to resolve this dispute. “After all, the animating purpose of § 1782 is comity

... .” ZF Automotive

1 T he 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 Ma ch. 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 395117 3, 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
t he judge faithfully applie d the Supreme Court’s instructions in In tel and reasonably exercise d his statutory discretion, the district court’s judgment is
A FFIRMED

.