Federal Courts Should Rethink the Personal Jurisdiction Requirement of 28 U.S.C. § 1782

Mintz - Arbitration, Mediation, ADR Viewpoints
Contact

Mintz - Arbitration, Mediation, ADR Viewpoints

The increasingly popular federal statute concerning cross-border judicial assistance, 28 U.S.C. § 1782, enables a District Court to order a “person” that “resides or is found” within its jurisdiction to produce evidence for use in a proceeding in a foreign or international tribunal. The Second Circuit recently addressed two questions concerning the application of this unique legislation: (1) on what bases does a District Court have personal jurisdiction over a non-party for purposes of the statute (how does a court interpret and apply the “resides or is found” criteria in jurisdictional terms); and (2) can the District Court order such a person to produce evidence that it maintains outside of the U.S.? See In re del Valle Ruiz, 2019 U.S. App. LEXIS 30002 (2d Cir. Oct. 7, 2019).

The Court’s thumbs-up decision concerning the latter (“extraterritoriality”) issue has gotten the principal if not exclusive coverage in the legal press. But its decision concerning the jurisdiction issue is likely to have a more regular impact on the utilization of the § 1782 discovery mechanism, and it is, at least in part, a bit of a head scratcher. That is, the Second Circuit’s test for specific personal jurisdiction over a non-party for purposes of discovery is, at its extreme, arguably murky, difficult to apply, and inequitable. We propose a test that is simpler, more easily applied, and more consistent with due process fairness.

1. Overview

The Second Circuit held that the statute’s “resides or is found” requirement “extended § 1782’s reach to the limits of personal jurisdiction consistent with due process;” hence, either general personal jurisdiction (“resides”) or specific personal jurisdiction (“is found”) over a person is sufficient. See id. at *10-*11. SCOTUS has not prescribed a test or analysis for either basis for jurisdiction over a non-party “witness,” so the Second Circuit went on to fashion its own. But in seeking to extend the reach of personal jurisdiction over a non-party witness in parallel with the reach of personal jurisdiction over a defendant, the Court arguably produced an impractical test of questionable due process fairness to the non-party.

Here is the context. In del Valle Ruiz, investors in Banco Popular Español (“BPE”) were contesting the legality of a government-forced fire sale of BPE to Banco Santander (“Santander”) in certain foreign proceedings. The investors sought discovery, under 28 U.S.C. § 1782, in New York from Santander and its New York-based affiliate, Santander Investments Securities, Inc. (“SIS”), “concerning the financial status of BPE.”

Santander is a Spanish banking company with its principal place of business in Madrid, while SIS is a Delaware corporation with its principal place of business in New York City. Id. at *7 n.4. (It was not contended that Santander has a branch or rep office in New York.) Santander argued in the District Court that it was not “found” within the Southern District, for purposes of § 1782, and that although SIS resided or was found in the Southern District, it was “not involved with the acquisition of BPE.” Id. at *7-*8.

The District Court determined that it had general personal jurisdiction over SIS, and that finding was not challenged on appeal. (The Court noted that the parties apparently assumed that the term “resides,” for these purposes, refers to the place where an individual is “essentially at home,” thereby establishing general personal jurisdiction. Id. at *9 n.6.) Santander was not subject to such general personal jurisdiction, however, and so the court considered whether it had specific personal jurisdiction. It held that it did not.

The District Court ultimately denied the application vis-à-vis Santander for lack of personal jurisdiction (but granted discovery from SIS). Id. at *3-*4. The Second Circuit affirmed.

2. The Second Circuit’s Close Analogy Test re Specific
Personal Jurisdiction Over a Non-Party Witness

Lacking guidance from SCOTUS, id. at *16, the Court of Appeals was in effect called upon to establish tests for personal jurisdiction over a non-party company for purposes of discovery. One part of the solution was obvious -- a District Court’s general personal jurisdiction over a company according to the Daimler rule would suffice. But lacking such general personal jurisdiction over Santander, the Court decided that the scope of the statutory term “found” extends “to the limits of personal jurisdiction consistent with due process,” id. at *11, *14-*15; therefore, “specific” personal jurisdiction would suffice as well.

For purposes of determining whether a federal court has specific jurisdiction over a non-party witness, the Second Circuit chose to adapt the established two-prong test for whether a court has specific personal jurisdiction over a party defendant -- i.e., (i) has the party purposefully directed activities at or in the forum that gave rise to or related to the claim(s) in question; and (ii) does the assertion of personal jurisdiction over that party “comport with fair play and substantial justice.” See id. at *15-16.

In that regard, the Court reached back to its own earlier formulation, in Gucci Am., Inc. v. Weixing Li, 768 F.3d 122, 137 (2d Cir. 2014), of a closely analogous test regarding non-parties in connection with a Fed. R. Civ. P. 45 subpoena: (i) has the non-party had contacts with the forum that relate to the discovery order in question, and (ii) does exercising jurisdiction over the non-party for purposes of that order “comport with fair play and substantial justice.” See del Valle Ruiz at *16.

Then the Court sought to clarify its new test for present purposes. (And here is where things got murkier.) First, it indicated that the “due process” to which such a non-party would be entitled, for jurisdiction purposes, is not “categorically lower” than that to which a party is entitled, but that it was enough that the non-party’s contacts with the forum “go to the actual discovery sought rather than the underlying cause of action.” See id. at *18.

Second, the Court sought to elucidate the meaning of the “arising out of or relating to” requirement -- i.e., the requisite connection of the discovery materials to the forum -- opining that those phrases should be interpreted flexibly according to the scope of the non-party’s contacts with the forum. That is, generally,

“where the discovery materials sought proximately resulted from the respondent’s forum contacts, that would be sufficient to establish specific jurisdiction for ordering discovery. That is, the respondent’s having purposefully availed itself of the forum must be the primary or proximate reason that the evidence sought is available at all.” Id. at *19.

However, where the non-party’s contacts with the forum were broader and more significant,

“a petitioner need demonstrate only that the evidence sought [by way of § 1782] would not be available but for [the non-party] respondent’s forum contacts.” Id.

The Court’s prescription was not a model of clarity or simplicity. Neither was the Court’s application of its test(s) vis-à-vis Santander. See id. at *19-*21. Ultimately, the petitioners were required to show (i) that Santander had had contacts with the district in question that were “connected to the discovery sought,” and (ii) that such contact “was the proximate reason the evidence sought was available, not merely that the evidence would not have been available but for the contact.” Id. at *20 (emphasis in original). (They did not make that showing. See id. at *20-*21.) Simply put, the thought of having to litigate any of this seems likely to produce considerable head-scratching.

3. Toward a Simpler and More Equitable Test for Specific Personal
Jurisdiction Over a Non-Party Witness

3.1 A Non-Party Witness is Arguably Entitled to Due Process
for Purposes of Personal Jurisdiction

State and federal courts have asserted broadly varied positions and tests regarding personal jurisdiction over non-party witnesses generally. Several state courts, for example, consider that due process limitations on personal jurisdiction applicable to a defendant do not apply at all with respect to the court’s subpoena power over a non-party. The majority of federal courts that have considered the issue, however, have sought to formulate some sort of minimum contacts due process test for personal jurisdiction over a non-party for subpoena enforcement purposes. Strong rationales for those tests have been lacking, however.

The Fifth and Fourteenth Amendments of the U.S. Constitution guarantee due process to “persons,” not “parties,” and so non-party witnesses are not apparently excluded from those thus protected. Moreover, the Due Process Clause “is the only source of the personal jurisdiction requirement….” Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703 n.10 (1982). It gives a “degree of predictability to the legal system” so as to enable persons to anticipate where their conduct will render them subject to legal process. Cf. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980). There is no obvious reason why the same foreseeability/fairness consideration should not apply with respect to personal jurisdiction over a non-party concerning discovery.

Granted, personal jurisdiction to enforce discovery rules -- procedural matters that are rarely if ever appealable -- is arguably different from personal jurisdiction to adjudicate the liability and substantive rights of a defendant. However, due process essentially concerns procedural fairness. Hence, it is reasonable to require that a court’s personal jurisdiction over a non-party should be consistent with due process principles.

3.2. Problems With the Second Circuit’s Close Analogy Test
for Specific Personal Jurisdiction Over a Non-Party

Personal jurisdiction is, in principle, a measure of the territorial limit of the power of a court. It is essentially a function of the relationship (e.g., by contacts, consent, etc.) of a person with the forum. Generally, a court has specific personal jurisdiction over a non-resident defendant when (i) a claim “arises out of or relates to” that defendant’s contacts with the forum, and (ii) “the maintenance of [a] suit [in that forum] does not offend traditional notions of fair play and substantial justice.” del Valle Ruiz at *15, citing Gucci Am., Inc. v. Weixing Li, 768 F.3d 122, 134 (2d Cir. 2014), quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

The Second Circuit’s closely analogous test concerning a non-party witness requires that the evidence/discovery material sought must “arise out of or relate to” the contacts of that non-party with the forum. The problems with that test -- impracticality and unfairness -- stem largely from the requirement of an ill-defined connection between the evidence and the forum.

Impracticality

For example, first, what aspect of the evidence sought must “relate” to the non-party’s forum contacts? Is it the evidence’s (a) subject matter, (b) genesis, or (c) location that is important?[1]

Second, how does one show that the pertinent aspect of the demanded discovery “arises out of or relates to” the non-party’s contacts with the forum? For example, if a petitioner must show that the discovery materials sought (a) “proximately resulted from the respondent’s forum contacts,” or (b) “would not be available but for respondent’s forum contacts,” what does that mean?

Third, at what point would a petitioner be able to make the requisite showing? The close analogy test in effect hinges on the relationship of the evidence sought to the forum. But how can a court evaluate such a possible relationship before examining the documents and information that are demanded?

In adjudicating specific personal jurisdiction over a defendant, the court may rely first on allegations in the complaint concerning the defendant’s contacts with the forum and the claim(s). A plaintiff must provide, and is likely to have, sufficient information to support long-arm jurisdiction, at least prima facie, when commencing suit. On the other hand, a party seeking discovery typically demands documents and information by categories based solely on their perceived relevance to identified claims or defenses. How likely is it that a petitioner invoking 28 U.S.C. § 1782 will be able to show in advance a satisfactory connection between the subpoenaed non-party’s contacts with the forum and each category of documents demanded and/or each category of information sought in a deposition? Not very. Alternatively, could the litigant seeking discovery add a qualifier to the descriptions of the categories of documents and information demanded from a non-party -- i.e., “that arise from or relate to your contacts with the captioned forum” -- and place the burden on the subpoenaed non-party to figure things out? That seems unacceptable.

Unfairness

Furthermore, does a jurisdictional test that hinges on an ill-defined relationship between the discovery sought and the witness’s contacts with the forum serve the cause of “fair play and substantial justice” for the witness? It is unlikely to make the non-resident non-party’s obligation in that forum more foreseeable and therefore more reasonable.

Concerning a defendant, specific personal jurisdiction may be based on its contacts with a forum comprising conduct that allegedly was unlawful and/or resulted in cognizable injury within the forum. Personal jurisdiction over a defendant in that forum in those circumstances seems reasonably foreseeable and fair.

On the other hand, specific personal jurisdiction over a non-party witness based on a closely analogous formula would justify compelling a non-party to litigate and produce discovery in a distant forum if its contact(s) with the forum “gave rise to or related to” information and/or materials sought by litigating parties with whom the witness may have no relationship, concerning matters regarding which the witness may have no interest. The witness has not acted unlawfully. Its contacts with the discovery forum are very likely irrelevant to the merits of the litigation. The information or documents that “relate” in some way to its past contact(s) with a particular forum might “relate” as well to its contacts with other fora. And the information -- whether printed, in electronic form, or in brain cell synapses – is most likely held by the non-resident non-party somewhere outside the forum. All of this diminishes the foreseeability, and therefore the fairness, of compelling a non-party witness to produce evidence in a forum with which it has had minimal or sporadic contacts, as opposed to in a forum in which the non-party is present.

The case is no stronger from the enforcing court’s perspective. In World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980), SCOTUS described a test of reasonableness that considered balancing multiple factors in evaluating the “fair play and substantial justice” element of due process. Among the factors to be considered were the forum’s interest in adjudicating the dispute in question. Id. at 292. But the forum has no comparable interest as regards a non-resident non-party who is only a possible source of discovery, especially when that discovery serves litigation that is being conducted elsewhere. According to SCOTUS’s analysis, that argues for requiring more substantial contacts of the witness to the forum.

In sum, we submit that a test for jurisdiction that is founded on an ill-defined connection between the discovery sought and the forum via the witness’s minimum contacts is not only impractical, but, in due process terms, unfair to the non-party witness. A simpler, fairer test for specific personal jurisdiction over a non-party company for purposes of discovery would clearly be preferable, and is certainly conceivable.

3.3 A Simpler Test: Specific Jurisdiction to the Extent of Presence

The Second Circuit acknowledged that the “due process” to which a non-party witness is entitled is different, not “categorically lower,” than that to which a party defendant is entitled. See del Valle Ruiz at *11-*12, *18. And case law concerning specific personal jurisdiction as a basis for § 1782 discovery from a non-party is still “sparse” and largely “unsettled”. Cf. Australia and New Zealand Banking Group Ltd. v. APR Energy Holding Ltd., 2017 U.S. Dist. LEXIS 142404 (S.D.N.Y. Sept. 1, 2017) at *14.

We propose that the limit of specific personal jurisdiction over a non-party for purposes of discovery should be to the extent of the person’s “presence” in the forum jurisdiction. That is, we submit that more substantial contact(s) to a forum should be required to establish personal jurisdiction over a mere witness for purposes of discovery than over a defendant for purposes of litigation. Hence, the reach of specific personal jurisdiction should be less extensive as concerns a non-party with respect to discovery than its reach vis-à-vis a defendant with respect to a claim in litigation. On the other hand, a company that is “present” in the forum should be subject to the court’s jurisdiction for purposes of discovery of all materials and information in the witness’s possession, custody or control.

The Second Circuit implicitly accepted that a person “resides,” for purposes of the statute, where that person (individual or entity) is “essentially at home,” and thus is subject to general personal jurisdiction. In that case, according to the canons of statutory construction, where a person “is found” must mean something different. One is “found” where one is located. Cf. Webster’s Encyclopedic Unabridged Dictionary of the English Language (1996) at 756, 719. We suggest, then, that a person “is found” simply where that person (individual or entity) is “present.”

A company would be deemed “present” if it is regularly conducting business (commercial or otherwise) from or in the forum area; that is, to the extent of (a) its physical presence (when the entity is resident, e.g., it has a place of “business” in the jurisdiction) or (b) its electronic (including telephonic) presence (when the non-resident entity regularly solicits and conducts business electronically with persons physically present in the jurisdiction). Jurisdiction would obtain to the extent of that presence. (For example, the local branch of a bank would be required to comply, but not all branches everywhere, etc.) But no showing would be required, for purposes of jurisdiction, of a connection between the discovery sought and the witness’s presence in the forum.

Why should the reach of specific personal jurisdiction be less extensive concerning a non-party with respect to discovery than concerning a defendant with respect to litigation? Beyond the consideration of the practicalities of formulating a workable test, it is a matter of foreseeability and fairness. (Isn’t it most foreseeable that documents and information will be sought where their holder is present?)

This proposed test is both practical and fair. First, it relies solely on a company’s most readily ascertainable contact(s) with a forum. Analogously, the Second Circuit indicated that tag jurisdiction is sufficient with respect to a non-party individual witness.[2] See del Valle Ruiz at *11-*12. No relationship is required between the evidence sought and an individual witness’s transient “contact” with the forum. Surely, then, the non-transient presence in the jurisdiction of a non-party entity, such as a corporation, should suffice for purposes of establishing specific personal jurisdiction for purposes of discovery.

The proposed test is also fairer to the witness. Presence itself reasonably gives rise to expectations in a company of certain responsibilities within that jurisdiction -- to comply with the laws, to pay taxes, etc. These are foreseeable, indeed expected, responsibilities, however “burdensome”. Historically, the obligation of a non-party witness to provide evidence for use in a judicial proceeding has been considered a civic duty rather than a liability. The public has a “right to every man’s evidence.” It seems eminently fair to presume, for due process purposes, that a company must reasonably expect that its civic duties in a district in which it is present include the obligation to provide evidence that is within its possession, custody, or control.

The proposed test also enables all concerned to organize their conduct accordingly. One of the rationales for the sufficiency of “tag” or “transient” jurisdiction over individual defendants, see Burnham v. Superior Court, 495 U.S. 604 (1990), is that the physical presence of a person in a jurisdiction implies some purposeful availment of the benefits of the forum. Id. at 637-638 (Brennan, J., concurring). (Justice Brennan opined moreover that the transient presence of a defendant in the forum also indicates that it would suffer only slight if any inconvenience from being sued there. Id. at 638.) In Burnham, the court was considering the transient presence of a defendant, rather than the purposeful regular presence of a non-party witness. The same considerations hold true, albeit with greater force, in the latter case.

Finally, in the past, the Second Circuit seemingly endorsed tag jurisdiction as sufficient with respect to a non-party business organization witness as well. See First Am. Corp. v. Pricewaterhouse LLP, 154 F.3d 16 (2d Cir. 1998) (documents subpoena enforced against a UK partnership; one of the partners served with subpoena while physically present in New York on a business trip); cf. In re Edelman, 295 F3d 171, 179 (2d Cir. 2002). It would not be a stretch for the Second Circuit also to accept “presence” as a fair basis for specific personal jurisdiction over any business organization for purposes of discovery under 28 U.S.C. § 1782.

4. Conclusion

The Second Circuit’s decision regarding the reach of and test for specific personal jurisdiction, for § 1782 purposes, over a non-party company “found” within the relevant geographical jurisdiction is important. We can only hope that it and the other Courts of Appeals eventually give the matter a rethink and establish a simpler, clearer and fairer test in that regard so that personal jurisdiction does not become a confusing barrier to access to the statute’s benefits.[3]

A version of this article was published in Law360 on Nov. 8, 2019.


[1] The subject matter will virtually always be germane to the issues in the foreign proceeding, but not necessarily to the witness’s contacts with the forum. In a fairly recent District Court decision, the court looked for a nexus between (a) the New York contacts of a foreign bank having a New York branch, and (b) the subject matter of the discovery sought pursuant to a § 1782 subpoena. See Australia and New Zealand Banking Group Ltd. v. APR Energy Holding Ltd., 2017 U.S. Dist. LEXIS 142404 (S.D.N.Y. Sept. 1, 2017) at *15. Finding none, the court concluded that there was no basis for specific personal jurisdiction over ANZ Bank’s New York branch for the purposes in question. Did Congress intend that this discovery method thus generally be unavailable?

[2] “Tag” (or transient) jurisdiction -- a court’s exercise of personal jurisdiction over an individual who is served, and thus “tagged,” when physically present, however transiently, within the forum’s area -- is deemed by the Second Circuit to satisfy the “found” requirement vis-à-vis an individual non-party witness. See del Valle Ruiz at *11-*12, citing In re Edelman, 295 F.3d 171 (2d Cir. 2002).

[3] That would be reasonable for a statute that Congress intended to be interpreted broadly and applied generously in order to realize its twin goals of (i) providing “equitable and efficacious discovery procedures in the United States courts for the benefit of tribunals and litigants involved in international disputes,” and (ii) encouraging foreign countries by example to provide similar means of assistance to our courts. Cf. del Valle Ruiz at *14.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Mintz - Arbitration, Mediation, ADR Viewpoints | Attorney Advertising

Written by:

Mintz - Arbitration, Mediation, ADR Viewpoints
Contact
more
less

Mintz - Arbitration, Mediation, ADR Viewpoints on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.