UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2023

(Argued: January 24, 2024 Decided: March 11, 2024)

No. 23-380

–––––––––––––––––––––––––––––––––––– IN RE: APPLICATION OF BONSENS.ORG FOR AN ORDER PURSUANT TO 28 U.S.C. § 1782 TO CONDUCT DISCOVERY FOR USE IN A FOREIGN PROCEEDING ––––––––––––––––––––––––––––––––––––

APPLICATION OF BONSENS.ORG, FOR AN ORDER PURSUANT TO 28 U.S.C. § 1782 TO CONDUCT DISCOVERY FOR USE IN A FOREIGN PROCEEDING,

Applicant-Appellant,

-v.-

PFIZER INC.,

Respondent-Appellee. *

––––––––––––––––––––––––––––––––––––

*The Clerk of Court is respectfully directed to amend the official case caption as set forth above.

1 Before: LIVINGSTON, Chief Judge, JACOBS and LOHIER, Circuit Judges.

Applicant-Appellant BonSens.org (“BonSens”) filed an application in the United States District Court for the Southern District of New York (Furman, J.) seeking discovery under 28 U.S.C. § 1782 from Respondent-Appellee Pfizer Inc. (“Pfizer”) for use in a suit BonSens initiated against the French government in France. After BonSens filed its § 1782 application, an intermediate French administrative court affirmed the dismissal of BonSens’ suit for lack of jurisdiction. Having appealed that decision to the Conseil d’État, the highest French administrative court, BonSens contends that its requested discovery, pertaining to certain communications between Pfizer’s CEO and the President of the European Commission, is relevant to issues pending in the French appeal. The district court disagreed, denying BonSens’ § 1782 application on the ground that it was not “for use” in the French proceeding. We hold that BonSens’ requested discovery is irrelevant to the jurisdictional issue on appeal in France and that the prospect of a merits review in that proceeding is too speculative to satisfy the statutory “for use” requirement. Therefore, the district court properly denied BonSens’ § 1782 application and the judgment of the district court is AFFIRMED. FOR APPLICANT-APPELLANT: SONAL JAIN, Siri & Glimstad LLP, New York, NY. FOR RESPONDENT-APPELLEE: BENJAMIN W. GRAHAM (Joseph G. Petrosinelli, on the brief), Williams & Connolly LLP, New York, NY. DEBRA ANN LIVINGSTON, Chief Judge:

Applicant-Appellant BonSens.org (“BonSens”) appeals from a judgment of the United States District Court for the Southern District of New York (Furman, J.) denying its application for discovery pursuant to 28 U.S.C. § 1782. That statute permits a district court, “upon the application of any interested person,” to order

2 a person within its jurisdiction “to produce a document or other thing for use in a proceeding in a foreign or international tribunal.” 28 U.S.C. § 1782(a). BonSens, a non-profit association consisting of “concerned scientists, medical doctors, legal experts and citizens,” A-10–11, ¶ 9, filed a § 1782 application seeking discovery from Respondent-Appellee Pfizer Inc. (“Pfizer”) in the form of documents or communications between Pfizer’s CEO, Albert Bourla, and the President of the European Commission, Ursula von der Leyen, regarding the Advance Purchase Agreement (“APA”) entered into by Pfizer, BioNTech Manufacturing GmbH