German litigants in a German action tried to get discovery in America via 28 U.S.C. 1782 in an action against Deutsche Telecom AG from the attorneys representing the parties in a similar class action pending in the Southern District of New York. The German litigants wanted the discovery material that had been produced in the the class action and were willing to be subject to the same confidentiality order entered in the class action. However, a criminal action against Deutsche Telecom AG relating to the same transactions that were the subject of the civil action was pending in Germany, and the Bonn Prosecutor asserted that discovery in this proceeding would interfere with the criminal investigation. The District Court found that the German litigants met the requirements of 28 U.S.C. 1782, but that it was exercising its discretion, in light of the German prosecutor's view, not to order discovery. In Schmitz v. Bernstein Liebhard & Lifshitz
, the Second Circuit affirmed. The decision in this case can be found at the Second Circuit website
and was decided on July 20, 2004.