I Nre Application of Venequip , S.a. v. Caterpillar Inc .

In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 22-1463
I N RE A PPLICATION OF VENEQUIP , 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 — DECIDED O CTOBER 10, 2023
____________________
Before S YKES , Chief Judge, and R OVNER and J ACKSON -
A KIWUMI , Circuit Judges.
S YKES , Chief Judge. For many years, Venequip, S.A., a
Venezuelan heavy-equipment supplier, sold and serviced
products made by Caterpillar Inc., the Illinois-based manu-
facturer 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,

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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 Ҥ 1782(a)
authorizes, but does not require” the court to provide judi-
cial 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 ad-
dressed 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 applica-
tion.

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No. 22-1463 3
Venequip argues on appeal that the judge misapplied the
Intel factors. Caterpillar responds that subsequent develop-
ments 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

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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 infor-
mation that will assist in the ongoing proceedings and
investigations in Switzerland.” The “discoverable infor-
mation” covers 22 categories of documents and 29 deposi-
tion 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 American-
style discovery would upset Swiss procedural norms, par-
ticularly 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 man-
ner 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 differ-
ences 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 forum-
selection and choice-of-law provisions in Venequip’s con-
tracts with CAT Sàrl, noting that the parties were sophisti-
cated international companies and were undoubtedly aware

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No. 22-1463 5
of the differences between Swiss and U.S. procedural and
substantive law when they negotiated these multimillion-
dollar contracts.
Finally, the judge considered the intrusiveness and bur-
dens 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 infor-
mation.” 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 expres-
sion 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 judi-
cial 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 judicial-
notice motion, Venequip reported that it had not filed a

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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 Evi-
dence” 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 “ulti-
mately” 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 strate-
gy. 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. 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,”

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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). 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 time-
ly 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

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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 develop-
ments 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 develop-
ments 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.

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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 proceed-
ings 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 evi-
dence it seeks from CAT Sàrl “is part of a dispute … regard-
ing 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 per-
son 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 proceed-
ing in a foreign or international tribunal, in-
cluding criminal investigations conducted

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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 tri-
bunal 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 proceed-
ing 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.

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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 intrusive-
ness 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) appli-
cation:
First, when the person from whom discovery is
sought is a participant in the foreign proceed-
ing … , the need for § 1782(a) aid generally is
not as apparent as it ordinarily is when evi-
dence 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 proceed-
ings underway abroad, and the receptivity of
the foreign government or the court or agency
abroad to U.S. federal-court judicial assis-
tance. … [Third,] a district court could consider
whether the § 1782(a) request conceals an at-
tempt to circumvent foreign proof-gathering
restrictions or other policies of a foreign coun-

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12 No. 22-1463
try or the United States. … [And fourth,] undu-
ly intrusive or burdensome requests may be re-
jected 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 wheth-
er, 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 nu-
anced. 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

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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 “down-
right 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 circum-
vention 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 interna-
tional companies—had agreed to resolve their disputes in
Swiss courts under Swiss law, with its more circumscribed
discovery procedures. On this reasoning, the judge conclud-
ed that “[t]he third factor … strongly favors Caterpillar.”
This analysis reflects a faithful application of the Intel fac-
tors and a reasonable exercise of the judge’s wide discretion

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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 argu-
ment 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 forum-
selection 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 discovera-
bility” 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 discov-
ery limitations in the forum it freely and intelligently select-
ed. That is, the judge examined permissible contextual
factors to determine whether Venequip should be held to its

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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. federal-
court 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 assis-
tance. 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 cau-
tious 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 dif-
ferent 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

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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 de-
grees 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 dis-
trict 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).

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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
A FFIRMED.

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