By: Aaron D. Simowitz & Linda J. Silberman
The Supreme Court’s recent decisions on personal jurisdiction, including its 2021 decision in Ford Motor Co. v. Montana Eighth Judicial District Court, have all focused on the adjudication of plenary claims. In seven years, the Court has decided six major cases on personal jurisdiction in that context. However, these precedents also appear to guide lower courts in areas outside the traditional focus of personal jurisdiction doctrine but where personal jurisdiction is nonetheless necessary. For example, a court must have personal jurisdiction over a nonparty witness in order to compel the witness to testify or to produce documents. A court must have personal jurisdiction over a person in order to obtain preliminary relief, and a court must have jurisdiction, either personal jurisdiction or attachment jurisdiction, in order to recognize and enforce a foreign country judgment or arbitral award. In the development of its jurisdictional jurisprudence, the Supreme Court has never paused to consider the implications of its decisions on these other applications of personal jurisdiction. This Article attempts to chart a path by examining these other forms of personal jurisdiction that arise, often in connection with the assertion of jurisdiction over a nonparty to the initial litigation. This Article presents a coherent approach to the power of courts over nonparties that is consistent with the prevailing constitutional doctrine on personal jurisdiction developed in the context of traditional plenary claims. This Article offers a comprehensive consideration of how courts should approach the question of their authority over nonparties––a theory of “nonparty” or “discovery jurisdiction” that fits comfortably with the Court’s present jurisprudence.