The purpose of this article is to provide an overview of the logistics and legal rules that govern the conduct of discovery in the United States for cases pending before judicial bodies in other countries. The United States Code empowers foreign litigants with strikingly broad rights to conduct discovery in the United States. The following discussion highlights the legal rules that govern these discovery rights, and provides an overview of how a party goes about exercising them.
The United States Code provides for the domestic enforcement of discovery obligations in matters before foreign or international courts:
The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation.
28 U.S.C. § 1782(a) (“Section 1782”)
The statute provides that a U.S. district court may enforce discovery in a matter pending before a foreign or international tribunal, whether the discovery request is issued in the form of letters rogatory or a general written request from the tribunal, or upon the application of an interested party. Id. The district court may issue an order prescribing that discovery be taken in a manner consistent “in whole or part the practice and procedure of the foreign country or the international tribunal.” Id. If the court does not prescribe otherwise, discovery is to be conducted in accordance with the Federal Rules of Civil Procedure. Id.
Lines of case law implementing Section 1782 have developed additional rules to guide district courts that receive requests to enforce discovery in connection with cases pending abroad. In determining whether to grant an application for discovery for use in a foreign proceeding, courts should consider the following factors:
- Whether the documents or testimony sought are within the foreign tribunal’s jurisdictional reach
- The nature of the foreign tribunal, the character of the proceeding underway abroad, and the receptivity of the foreign government or the court or agency abroad to federal court judicial assistance
- Whether the request for discovery conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States
- Whether the subpoena contains unduly intrusive or burdensome requests
In re Godfrey, 526 F. Supp. 2d 417 (S.D.N.Y. 2007)
District courts enjoy wide discretion in determining whether to permit discovery under section 1782 in particular cases. United Kingdom v. United States, 238 F.3d 1312 (2001). However, a U.S. district court may not compel a witness to produce documents located outside the United States. Id. Litigants have used Section 1782 to successfully compel the production of documents by non-parties residing in the United States. In re Hallmark Capital Corp., 534 F. Supp. 2d 951 (D. Minn. 2007). At least one court has held that a foreign litigant could not compel the production of documents from the U.S. government after the litigant tried, and failed, to obtain the same documents via a Freedom of Information Act request. In re Al-Fayed, 36 F. Supp. 2d 694 (D. Md. 1999).
If a person is served with a subpoena while physically present in the district of the court that issued the discovery order, he is “found” in that district for purposes of Section 1782; thus, a person who lives and works in a foreign country is not necessarily beyond the statute’s reach simply because the district judge signed the discovery order at a time when that prospective deponent was not physically present in the district. In re Edelman, 295 F.3d 171 (2d Cir. 2002).
State laws that would otherwise render certain information to be non-discoverable are pre-empted by Section 1782, so foreign litigants may discover information even if it falls within, for example, a category of private and non-discoverable information under a state constitution. In re Letter Request for Judicial Assistance from Tribunal Civil de Port-au-Prince, Republic of Haiti, 669 F. Supp. 403 (S.D. Fla. 1987).
Section 1782 and Arbitration
The United States Courts of Appeals have been “split” on the question of whether alternative dispute resolution (“ADR”) procedures may be “foreign tribunals” under Section 1782. Nat’l Broad. Co. v. Bear Stearns & Co., 165 F.3d 184, 191 (2d Cir. 1999); Republic of Kazakhstan v. Biedermann Int’l, 168 F.3d 880, 883 (5th Cir. 1999). In 2004, the U.S. Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc. gave the lower courts guidance in interpreting and applying Section 1782. 542 U.S. 241, 124 S. Ct. 2466 (2004). The Supreme Court held that ADR proceedings are not, per se, excluded from the definition of “foreign tribunals” under Section 1782. The Court further instructed, however, that foreign ADR litigants may not be entitled to Section 1782 in particular cases, and announced the four factors listed above for courts to use as guideposts in deciding whether to permit discovery in particular cases.
Are Foreign Private Arbitral Proceedings Covered Under Section 1782? Probably.
Despite the Supreme Court’s comprehensive analysis of the language of Section 1782, it did not explicitly define “foreign or international tribunal.” Since the Intel decision, however, several U.S. district courts have addressed whether Section 1782 requests for discovery can be used in private arbitral proceedings.1 In each case, the district court granted the party’s request. The reasoning behind each decision varied, but all supported the proposition that a “foreign or international tribunal” includes private arbitral panels, and thus Section 1782 may be used to obtain discovery in foreign private or purely commercial arbitral proceedings.
Overview of Courts’ Section 1782 Analysis
To summarize, courts conduct a two step analysis when ruling on Section 1782 applications:
Step One: Can the court exercise jurisdiction?
Relevant Questions: Does the target reside in the district?
Is the discovery sought for use in a foreign or international tribunal?
Is the party that is seeking discovery an interested party?
Step Two: Should the court exercise jurisdiction?
Relevant Questions: Is the target a party in the foreign proceeding?
What is the nature of the dispute and the receptivity of the court or tribunal to federal court judicial assistance?
Does the request represent an attempt to circumvent limitations imposed by the laws or rules of the foreign tribunal?
Is the discovery sought unduly intrusive or burdensome?
Logistics and Practical Guidance
The actual process of obtaining discovery in a case pending abroad is straightforward. The party seeking the discovery need only file an application seeking the discovery, which should include an explanation regarding how each element of Section 1782 is met in the case, along with any evidentiary support necessary to substantiate the claims. The main elements this initial filing should address include:
Allegations of facts establishing that the party from whom the discovery is sought is within the court’s jurisdiction (in other words, an allegation that the target is located in the district). It is important and helpful to serve the target at a location in the district.
Allegations of facts supporting the proposition that the underlying case is a dispute before a foreign “tribunal”
Allegations of facts to establish that the discovery request comports with U.S. law and is not otherwise overly burdensome
Parties seeking discovery under Section 1782 should be prepared that the target may file a motion to quash. The costs of litigating such a motion should be taken into account when weighing the costs of filing a Section 1782 application against the potential benefits. Our anecdotal survey of dockets in cases involving Section 1782 applications reveals that, when the target opposes the discovery, courts seem to resolve the case within four to eight weeks. Thus, the filing and resolution of a Section 1782 petition is a relatively expedient process as compared with litigation of an ordinary civil lawsuit.
Practical Guidance for Parties Seeking Discovery
Section 1782 requests can be initiated in one of two ways: (1) a “letter rogatory” from a non-U.S. or international tribunal2; or (2) a party or other interested person may make an application directly to the district court.
Using the broad interpretation of Section 1782 outlined in Intel, some lower courts have ordered discovery requests pursuant to Section 1782 for parties involved in foreign non-adjudicative proceedings, such as administrative proceedings or investigations.3 Therefore, even if a party is involved in a non-adjudicative proceeding abroad, one in which Section 1782 has not traditionally been utilized, Section 1782 may be nevertheless be an available discovery tool considering some of the recent court decisions.
Section 1782 discovery orders can be used to aid investigations so long as a tribunal ruling is within “reasonable contemplation.”4 Therefore, parties expecting to arbitrate abroad may preemptively file Section 1782 requests in the district court where any advantageous discovery may be obtained. Keep in mind, however, that while it is not a requirement, courts may consider whether a party has exhausted discovery procedures before the non-U.S. tribunal before seeking assistance in the U.S. courts.
It is important to note that U.S. district courts are not required to order discovery for use in foreign proceedings. Rather, in considering Section 1782 requests, U.S. district courts have been instructed to weigh the discretionary factors listed above.
To conclude, Section 1782 empowers parties engaged in litigation overseas with broad discovery rights in the United States. The attorneys of Reed Smith are well-versed in the governing law and, among the array of international services we offer, we are equipped to assist clients in obtaining discovery in the United States in cases pending abroad.