Title 28, Section 1782 of the United States Code can be a fruitful source of discovery for foreign litigants. The Statute is a legal device that authorizes a United States federal court to order a person “residing” or “found” within the court’s geographical jurisdiction to provide testimony or documents for use before a “foreign or international tribunal.”
In seeking evidence for use in a foreign legal proceeding under Section 1782, a district court may, but is not required, to order a person to produce discovery if the following three statutory requirements are met: (1) the application must be made by a “foreign or international tribunal” or “any interested person;” (2) the person or entity from whom the discovery is sought must reside or be found in the federal district in which the application is filed; and (3) the discovery must be for use in a proceeding in a “foreign or international tribunal.” Under the first requirement, the term “any interested person” is not limited to parties in a foreign proceeding, but also includes a non-party who has an interest in obtaining judicial assistance in a foreign proceeding.
The second requirement that the witness must reside or be found in the federal district where the application is filed is straightforward; however, there are limitations on the scope of discovery permitted under this requirement. The prevailing view is that Section 1782 does not authorize discovery of documents held abroad. Thus, even if a witness is located in the federal district where the application is filed, the witness cannot be forced to produce documents located outside of the United States. One New York decision, however, has held that Section 1782 does not require that the documents sought to be discovered be found in the district and, instead, held such considerations should be weighed on a case-by-case basis along with other discretionary factors.2
The meaning of the term “foreign or international tribunal” under the third requirement has led to many conflicting decisions. Since the Statute does not define any of its explicit terms, courts are left to decide their proper meaning, often with differing views. O ne recurring conflict is the question of Section 1782’s applicability to foreign private arbitrations. P rior to 2004, several federal courts, including the Second and Fifth Circuits, determined that foreign private arbitrations were not “foreign or international tribunals” within the meaning of the Statute.3 In a 2004 decision, Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), the United States Supreme Court provided guidance for courts interpreting and applying Section 1782. The Supreme Court did not explicitly determine whether a foreign private arbitration is a “foreign or international tribunal” under Section 1782; however, the Supreme Court’s reasoning and dicta strongly indicate that private arbitral tribunals fall within the Statute.
Since Intel, the majority of courts that have considered whether foreign private arbitral tribunals fall within the scope of Section 1782 have concluded that they do. A minority of courts, however, have followed the Second and Fifth Circuit’s pre-Intel decisions and have held that foreign private arbitrations remain outside the scope of the Statute. While the pre-Intel decisions in the Second and Fifth Circuits remain on the books, an argument can be made that those decisions should be reconsidered in light of the Intel case. To date, the Second Circuit has not reexamined the issue and the Fifth Circuit has maintained its pre-Intel position.
Another interesting question under this requirement is whether there is a distinction between a “foreign” tribunal and an “international” tribunal. An argument can be made that the term “foreign” tribunal refers to any tribunal located abroad, whereas the phrase “international” tribunal refers to any arbitral tribunal created pursuant to a treaty or interstate agreement regardless of location, including the United States.4 The Intel case is instructive in this regard. In Intel, the Supreme Court observed in dicta that “[Section] 1782 is a provision for assistance to tribunals abroad.”5 To date, however, no case has definitely addressed this issue.
Section 1782 is a powerful tool for foreign litigants because discovery is much broader in the United States than in most other legal systems. Notably, the discovery available under §1782 is not limited by the scope of discovery available in the jurisdiction where the main action is pending.
If the statutory requirements are satisfied, the district court may also consider four discretionary factors in deciding whether to grant or limit the requested discovery. These factors include: (1) whether the person from whom discovery is sought is a party in the foreign proceeding; (2) the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the tribunal to U.S. federal-court judicial assistance; (3) whether the Section 1782 petition conceals an attempt to circumvent discovery rules of the foreign country or the United States; and (4) whether the discovery request is unduly intrusive or burdensome. The decision of whether to grant a Section 1782 application, and the scope of the relief, if granted, is within the discretion of the federal district in which the application is filed and is made on a case-by-case basis.
Properly utilized, a party may obtain testimony from a key witness or critical documents that might otherwise be beyond the jurisdiction of a foreign court. Based on the plain meaning of the Statute and the Supreme Court’s expansive reading of Section 1782, in Intel, an argument can be made that the Statute should be available to foreign private arbitrations seated outside of the United States. However, the question will only be definitively answered when the Supreme Court explicitly addresses whether foreign private arbitrations constitute “tribunals” under the Section 1782. Until then, any decision to seek discovery in the United States for use in a foreign private arbitration should be considered on a case-by-case basis in consultation with United States counsel.