Did you know that parties to non-US proceedings can readily
obtain information found in the US for use in those non-US
proceedings? They can, under 28 USC 1782 ('Section
1782').
The heading of Section 1782 is at first blush seemingly innocuous:
'Assistance to foreign and international tribunals and to
litigants before such tribunals'. In practice, however,
the statute's reach is broad and subject to few
limitations.
Whether Section 1782 is an American Dream or an American Nightmare
may depend on whether your client is on the making or receiving end
of a Section 1782 request for discovery. Persons or companies doing
business in (or even travelling through) the US ought to be aware
of its reach and take appropriate precautions. Conversely, foreign
litigants should consider using Section 1782 when information
helpful to their case may be found in the US.
The Basics
Section 1782 provides two methods for obtaining discovery. The first is by letters rogatory issued by a foreign or international tribunal through diplomatic channels. This can be a time-consuming, bureaucratic exercise. This note focuses on the second, simpler, method of applying to the United States District Court for an order to provide discovery.
Section 1782 reads, in pertinent part:
'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. The
order may be made pursuant to a letter rogatory issued, or request
made, by a foreign or international tribunal or upon the
application of any interested person and may direct that the
testimony or statement be given, or the document or other thing be
produced, before a person appointed by the court.
…
A person may not be compelled to give his testimony or statement or
to produce a document or other thing in violation of any legally
applicable privilege.' [1]
A US District Court has wide discretion to grant discovery under
Section 1782 and, in exercising its discretion, must take into
account the following four factors:
- Whether the person from whom discovery is sought is a participant in the foreign proceeding;
- The nature of the foreign tribunal, the character of the proceedings underway in the tribunal, and the receptivity of the foreign tribunal / government / court / agency to federal judicial assistance from the US court;
- Whether the request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the US; and
- Whether the request is unduly intrusive or burdensome. [2]
The Details
Federal courts have interpreted the text of the statute broadly and, at times, inconsistently. Practitioners should take note of a few key terms within the statute and the Intel Corp. v Advanced Micro Devices, Inc. decision. The evolution of the statute and case law can be helpful or a hindrance to parties, depending on which side of the Section 1782 request they find themselves. The key elements of the statute for consideration are:
- '…in which a person resides or is found…'
A US District Court's power to exert jurisdiction over a
person residing in the US is straightforward. However, so-called
'tag jurisdiction', where personal jurisdiction is
satisfied by nothing more than physical presence, is sufficient for
a Section 1782 request. In Re Edelman [3], a
French national was served with a Section 1782 subpoena for his
deposition while visiting an art gallery in New York.
The Second Circuit upheld the subpoena, finding that 'when
a potential witness comes to the United States it is neither unfair
nor inappropriate under the statute to undertake his discovery
here'. [4] It follows that persons concerned about
receiving a Section 1782 request ought to be careful while visiting
the US or, taken to the extreme, even passing through the US en
route to another jurisdiction. Similarly, if a non-party to foreign
proceedings spends time in the US, it may be worth looking into
whether the non-party can be served while in the US in order to get
information.
- '…to produce a document or other thing…'
Section 1782 previously applied only to (1) deposition testimony
of any witness in the US and (2) for use in proceedings 'in
a foreign country with which the United States is at
peace'. The statute is no longer so limited in scope and,
while in practice a Section 1782 request typically seeks documents
or deposition testimony, its reach is far wider.
For example, a number of courts have ordered individuals in the US
to provide a genetic sample for use in foreign paternity
proceedings on the basis that providing such samples is routine
[5], neither unduly intrusive nor burdensome, and does not
infringe on rights under the Hague Convention [6]. It
would seem the long-arm of Section 1782 can reach inside one's
cheek for a DNA swab, and family practitioners in particular ought
to be aware of the scope of the statute.
- '…a proceeding in a foreign or international tribunal…'
It is unclear whether a private international arbitration
constitutes a 'foreign or international tribunal'
for the purposes of Section 1782. The Second [7] and Fifth
Circuit [8] Courts of Appeal have held that private
arbitral tribunals fall outside the scope of Section 1782. The
Eleventh Circuit Court of Appeal, on the other hand, suggests that
courts conduct 'a functional analysis focusing on whether a
body acts as a first-instance adjudicative decision maker, permits
the gathering and submission of evidence, has the authority to
determine liability and impose penalties, and issues decisions
subject to judicial review.' [9]
While the Eleventh Circuit declined to decide the point, this
approach seems sensible. Parties to private arbitral tribunals are
recommended to seek advice from local counsel and should bear this
guidance in mind if seeking an order under Section 1782 and, if
possible, might want to avoid making a Section 1782 request in the
Second or Fifth Circuits.
- Whether the person from whom discovery is sought is a participant in the foreign proceeding
If the person from whom discovery is sought is participating in
the foreign proceeding, the need for assistance under Section 1782
is 'not as apparent as it ordinarily is'. This is
because the foreign tribunal has jurisdiction over parties
appearing before it and can order them to produce evidence.
[10]
Where the court feels the true target of the request for discovery
is a party to the foreign proceedings, this will weigh against a
request under Section 1782 [11]. This defence to a Section
1782 request may well arise where the subject of the Section 1782
request is, for example, a US based advisor to one of the parties
to the foreign proceedings. When considering making a Section 1782
request, it is important to demonstrate that the request is not an
attempt to short-cut the discovery procedures already available in
the foreign proceedings.
In the Intel case, the US Supreme Court opined that
'nonparticipants in the foreign proceeding may be outside
the foreign tribunal’s jurisdictional reach; hence, their
evidence, available in the United States, may be unobtainable
absent' Section 1782. Courts are deeply split on whether
the language 'available in the United States'
means that the evidence sought must be physically located in the
US. In this era of cloud technology and increasingly global firms
and clients, those concerned about making their information Section
1782 'proof’ might wish to consider taking steps to
insulate their information, as best they can, from the reach of the
US District Court.
- The nature of the foreign tribunal, the character of the proceedings underway in the tribunal, and the receptivity of the foreign tribunal / government / court / agency to federal judicial assistance from the US court
In order to apply for discovery under Section 1782, a formal proceeding in the foreign jurisdiction need not be pending or even imminent. All that is necessary is that a 'dispositive ruling' by a foreign adjudicative body is 'within reasonable contemplation' [12]. Section 1782 is therefore useful at an earlier stage than the statutory language might suggest and may assist in settlement discussions ahead of formal proceedings beginning.
- Whether the request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the US
A foreign litigant making a Section 1782 request may struggle to
obtain an order for discovery if the litigant has already had an
opportunity, in the foreign proceedings, to do so.
Some commentators have sensibly suggested eliciting the views of
the foreign tribunal on the discovery requests to (1) educate the
US court on its discovery rules and (2) demonstrate that the
request is not a back door attempt to get discovery that would be
impermissible under its rules [13]. It may also
assist to set out evidence showing that the parties to the foreign
proceedings do not possess the desired information.
Also, the party making the request should also seek, in the first
instance, to obtain the information by informal means (such as a
simple letter) rather than making a formal Section 1782 request at
the outset. This may assist, should it become necessary to make a
formal application, in demonstrating to the court that judicial
assistance really is necessary.
- Whether the request is unduly intrusive or burdensome
The request ought to be sufficiently narrowly tailored to minimise the imposition on the recipient of the Section 1782 request. The request should also be timely; a court may be less likely to order discovery under Section 1782 in the run up to the foreign proceedings on the basis it imposes too tight a timetable for production of the information sought.
Guidance
Section 1782 is a powerful tool for use before and during
disputes taking place outside the US. If the reported cases are any
indication, use of the statute is on the rise. This is of
particular importance to companies and individuals with connections
to the US, as they may be caught by Section 1782's scope
unexpectedly. This underscores the need to seek local advice in the
US before making a Section 1782 request or immediately upon
receiving one.
Familiarity with the issues set out above may lead to an American
Dream for those seeking information from persons in the US, and
prevent an American Nightmare for those seeking to protect
information found in the US.
1. 28 USC 1782(a).
2. Intel Corp. v Advanced Micro Devices, Inc., 542 US 241
(2004).
3. In re Edelman, 295 F.3d 171 (2nd Cir. 2002).
4. In re Edelman at 179.
5. In re Letter of Request from Local Court of Pforzheim, 130
F.R.D. 363, 366 (W.D. Mich. 1989).
6. In re Request for Judicial Assistance from the Dist. Court in
Svitavy, 748 F. Supp. 2d 522 (E.D. Va. 2010).
7. NBC v. Bear Stearns & Co., 165 F.3d 184.
8. Republic of Kazakhstan v. Biedermann Int'l, 168 F.3d 880,
881 (5th Cir. 1999).
9. Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS
Forwarding (USA), Inc., 747 F.3d 1262 (11th Cir. 2014).
10. Intel Corp. at 264.
11. In re Application of Mare Shipping Inc. and Apostolos
Mangouras, 13 Misc. 238 (S.D.N.Y. Oct. 23, 2013).
12. Intel Corp. at 258-59.
13. Hanchet, Houpt, and Lakatos, 'Recent cases illustrate
benefits and pitfalls of Section 1782 discovery', Mayer Brown
LLP (17 March 2014).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.