The Eleventh Circuit affirms that 28 US Code Section 1782 applies to documents located in foreign countries.

In a case of first impression, on 23 August 2016, the Eleventh Circuit affirmed in Sergeeva v. Tripleton Intl. Ltd., that 28 US Code Section 1782 reaches documents located in foreign countries. The statute provides federal assistance to applicants seeking evidence in the United States for use in a non-US proceeding. The Eleventh Circuit had not, however, addressed the extraterritorial limits of the statute until its 23 August decision. With no controlling law precedent and a dearth of instructive decisions from sister Circuit Courts, the court itself noted that the question of whether or not Section 1782 could reach documents located in foreign countries presented a question of first impression.

The case arose from an embittered divorce dispute in Russia. The Appellee, Anna Sergeeva, sought discovery assistance in the United States in hopes of uncovering her ex-husband's concealed marital assets. The hunt for these hidden assets had taken her to the Bahamas, the British Virgin Islands, Cyprus, Latvia, Switzerland and finally the United States. After being denied information by the Atlanta, Georgia-based Appellant, Trident Corporate Services, Ms Sergeeva filed an ex parte application for judicial assistance in the US District Court for the Northern District of Georgia, demanding the production of documents possessed by Trident's overseas affiliates.

There are four prima facie requirements that must be established before Section 1782 can be used by a US district court:

  1. The request must be made "by a foreign or international tribunal or by any interested person".
  2. The request must seek evidence, whether it be "testimony or statement" of a person, or the production of a "document or other thing".
  3. The evidence must be "for use in a proceeding in a foreign or international tribunal".
  4. The person from whom discovery is sought must reside or be found in the district of the district court ruling on the application for assistance.

If these four requirements are satisfied then the court has discretion to grant the request.

In order to guide this discretion, the Supreme Court instructed district courts to consider

  1. The nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government to US federal court judicial assistance
  2. Whether or not aid is sought to obtain discovery in the foreign proceeding
  3. If Section 1782 is being used to circumvent foreign proof-gathering restrictions or other policies
  4. Whether or not the discovery requests are unduly intrusive or burdensome.

Trident argued to the district court that Section 1782 did not apply to documents located outside the United States that related to the ex-husband's ownership of a Bahamian company. Further, Trident contended that it did not have legal control over the non-US company and its documents. The district court disagreed and Trident appealed.

The Eleventh Circuit affirmed, finding that Section 1782 applies extraterritorially and that Trident met the control requirement necessary. The court found that Section 1782's statutory text indicates that documents should be produced "in accordance with the Federal Rules of Procedure." As the court noted, discovery under the Federal Rules is "broad and covers materials located outside the United States." As a result, the district court could require Trident to produce documents outside the United States, as long as they had legal control of the material.

Additionally, the court found Trident had proper control over the information sought because the legal right to obtain documents is established where affiliated corporate entities have actually shared information in the normal course of business. The court found there was circumstantial evidence indicating control, because Trident would have been unable to perform its duties without information and documents from the Bahamian company in question.

The decision in Sergeeva demonstrates the Eleventh Circuit's extensive reach in aiding the discovery of documents outside US territorial limits. As we saw in Foreign Discovery Under 28 US Code Section 1782 in French Proceedings on p16, the implications for litigants in countries where discovery does not exist, or is severely restricted, are huge.

The Eleventh Circuit Affirms Use Of Section 1782 To Compel The Production Of Documents Located In Foreign Countries

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