On July 17, 2015, in Mees v. Buiter, the US Court of Appeals for the Second Circuit vacated the district court's rejection of a 28 U.S.C. § 1782 application and clarified the "for use" requirement under the statute (No. 14-1866, (2d Cir. July 17, 2015)).

Willem Buiter accused Heleen Mees of allegedly sending him thousands of e-mails and threatening his life, which caused her to be arrested for stalking, menacing and harassment in New York state court. Mees agreed to counseling and compliance with an order of protection for Buiter and his wife in exchange for the dismissal of the charges. On March 28, 2014, Mees filed a Section 1782 application, seeking discovery from Buiter to investigate a defamation claim that she intended to bring against Buiter in the Netherlands. Section 1782 permits a district court to order a person within its jurisdiction to give testimony or produce documents for use in a proceeding in a foreign or international tribunal. Mees's application asserted that Buiter's accusations were false and caused her to lose her teaching job at New York University. Consequently, it sought discovery of a range of materials that would corroborate her claim that the pair had regular and consensual romantic encounters. The application also included a declaration from Mees's Dutch attorney, stating that Dutch law has a demanding pleading system and requires a plaintiff to substantiate the complaint. Buiter's Dutch attorney, on the other hand, submitted a declaration, stating the opposite regarding Dutch procedural law and that Mees already had enough evidence to satisfy the Dutch pleading threshold.

The US District Court for the Southern District of New York rejected Mees's application, basing the decision on the application's failure to satisfy the "for use" requirement. The court found that discovery should be required for actual use in the foreign proceeding, and that it was not necessary for Mees to draft an adequate complaint. Mees appealed.

The Second Circuit reversed, holding that Mees satisfied Section 1782's "for use" requirement by showing that the materials she sought would be used at some stage of a foreign proceeding that was within reasonable contemplation at the time of the district court proceeding. It was not required that the discovery sought be necessary for the party to prevail, only that it serve some use in the proceeding. Additionally, a foreign proceeding does not already need to be pending. Rather, the proceeding need only be within reasonable contemplation. Clarifying this requirement, the court emphasized that Mees was not necessarily entitled to discovery under section 1782. The district court must still go through the factors articulated under Intel Corp. v. Advanced Micro Devices, Inc. and decide whether to grant or deny the application (542 U.S. 241 (2004)). The Second Circuit vacated the district court order and remanded.

The court joined the US Courts of Appeals for the Fifth and Eleventh Circuits to reach the same conclusion regarding the "for use" requirement.

For more information on the methods available for taking evidence in the US in aid of a non-US proceeding, see Practice Note, Discovery in the US in Aid of Proceedings Held Outside the US.