SECTION 1782: OBTAIN U.S. DISCOVERY FOR USE IN FOREIGN PROCEEDINGS
In recent years, 28 U.S.C. § 1782 (Section 1782 hereinafter) has been an increasingly popular tool to assist fact-finding and obtain evidence for parties involved in global disputes. This statute essentially empowers a foreign litigant to obtain U.S. discovery to gather information to support their cases filed in non-U.S. proceedings. A party seeking Section 1782 discovery may directly apply to a U.S. court to request a person located within the U.S. (either a party to the foreign proceeding or a third party) to produce documents or sit for depositions. Provided that certain requirements are met, Section 1782 authorizes the court to issue a subpoena directing the person to provide the requested discovery, where disobedience could be punishable under the law by fine or imprisonment.
Section 1782 as an alternative to the Hague Convention to obtain evidence
Section 1782 potentially allows a party to gather more information or discover otherwise unavailable information, as the scope of discovery in the U.S. is generally broader than in other jurisdictions.
If a foreign party is looking for documents (paper or electronic) and testimony of witnesses located in the U.S., Section 1782 is a useful tool to help her collect these. Moreover, case law suggests that such discovery could sometimes reach documents located outside of the U.S.
Three statutory requirements:
As a threshold matter, the applicant pursuing Section 1782 discovery must establish that
- The discovery is “for use in a proceeding in a foreign or international tribunal.”
- The applicant is an “interested person” in that proceeding.
- The person from whom the discovery is sought resides or is otherwise found in the district of the court where the application is filed.
Four discretionary factors:
In general, the above requirements are broadly interpreted by courts. However, meeting the above statutory requirements does not guarantee that a U.S. court will order discovery. Once the statutory requirements are met, courts must weigh four discretionary factors to determine whether to grant, limit or deny discovery.
Unlike the statutory requirements, the applicant does not need to meet all four factors to obtain discovery. Moreover, no one factor is dispositive. The discretionary factors are listed below:
- Whether the discovery sought is within the non-U.S. tribunal’s jurisdictional reach and, thus, accessible without resort to Section 1782;
- The nature of the non-U.S. tribunal, the character of the proceedings abroad, and the receptivity of the non-U.S. government or the court or agency abroad to U.S. federal court judicial assistance;
- Whether the applicant’s request conceals an attempt to circumvent non-U.S. proof gathering restrictions or other policies of a non-U.S. country or the U.S.; and
- Whether the request is unduly intrusive or burdensome.
In the past, companies and individuals have successfully leveraged Section 1782 to obtain U.S.-style discovery and obtain information to support their cases. Indeed, whether a party wants to benefit from or avoid being a target of U.S. discovery, it will be helpful to become familiar with the statute as well as its current development in the U.S. courts, especially in terms of how different courts might treat the issue differently. Notably, the last decade has seen a deepening circuit conflict regarding whether U.S. discovery should be available for international private (as opposed to investor-state) arbitration, and many consider the issue ripe for the U.S. Supreme Court to address. A petition for a writ of certiorari was just filed this week. As more and more circuit courts join the debate, the high court might indeed take up the certiorari petition.