The Availability of United States Discovery for Use in Foreign Litigations

Parties to legal proceedings pending outside of the United States should be aware of a helpful U.S. statute, 28 U.S.C. § 1782, which provides a vehicle to obtain evidence from U.S. persons for use in a proceeding in a foreign or international tribunal.  There are limitations on the scope and applicability of the statute, as discussed in our white paper on § 1782, “United States Discovery for Foreign Litigants,” but in many cases this statute can be a powerful tool to help foreign litigants obtain U.S. evidence that might not otherwise be accessible to them.

Some of the key points to keep in mind are:

• The three basic prerequisites to obtain a discovery assistance order from a U.S. District Court are: (1) the person from whom discovery is sought must be located within the court’s jurisdiction; (2) the applicant must be an “interested person,” e., a party in the foreign proceeding or someone whose complaint triggered the proceeding; and (3) the discovery sought must be “for use in a proceeding in a foreign or international tribunal” – the prong that engenders the most debate in the U.S. courts.

• There is a lively debate over whether the statutory language extends to foreign private arbitration proceedings, with courts reaching different conclusions based on whether they follow U.S. Supreme Court dicta suggesting that arbitrations are covered or older Court of Appeals decisions finding arbitrations not covered by § 1782, as discussed in our white paper .

• The Supreme Court has instructed that the foreign proceeding need not already be pending but need only be “in reasonable contemplation” at the time of the request – but courts vary in their interpretation of that standard.

• Once the statutory requirements are met, the court has a fair amount of discretion, exercised in accordance with guidelines set by the U.S. Supreme Court, to determine whether to grant, deny, or tailor the request for discovery assistance.

• The statute provides that the discovery ordered will proceed “in accordance with the Federal Rules of Civil Procedure” – which means it will be governed by the ordinary U.S. discovery rules concerning relevance, proportionality, cost-shifting, custody and control, privilege assertions, and other aspects of U.S. discovery practice.

These and other variables can affect the viability of a request for discovery assistance under § 1782.  Castaybert PLLC can assist foreign litigants who wish to request U.S. discovery for a foreign proceeding as well as U.S. persons who need to determine how to respond to a foreign discovery request.

Category:  Business and Commercial Litigation | Discovery Practice