The Non-U.S. Litigator’s Dream Come True: U.S. Style Discovery to Obtain Evidence for Cases Litigated Outside the U.S.

Aug 21, 2014 | Blog

Litigators outside the United States have often dreamed of using U.S.-style discovery to obtain evidence that is in the U.S.  Somehow, it didn’t seem fair that they could not use the techniques of the country where the evidence is located.  With the assistance of U.S. counsel, foreign litigants can obtain U.S.-style discovery to obtain evidence located within the United States by means of an application under a statute known as 28 U.S.C. § 1782.

The notion of wide-ranging data, witness and document discovery is uniquely American. Unlike civil law systems and even most common-law jurisdictions, American courts permit a party to litigation to obtain in discovery of any information, pursuant to Federal Rule of Civil Procedure 26, “reasonably calculated to lead to admissible evidence.” (emphasis added). Such broad discovery is the stuff civil law litigants’ dreams are made of, and can determine the outcome of a case well before trial.

28 U.S.C. § 1782 states that a “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.” A district court will grant a §1782 application if the following three requirements are met: (1) the person whom discovery is sought against resides or can be found in the district of the issuing court; (2) that the discovery be for use in a proceeding before a foreign tribunal; and (3) the application is made by a foreign or international tribunal or by any interested person. In re Edelman, 295 F.3d 171, 175-76 (2d Cir. 2002). In most cases, these standards can be met without significant difficulty.

Yet, the decision to grant an application under § 1782 is case specific and discretionary with the court. Courts have split, for instance, on the issue of whether § 1782 may be used to obtain evidence for use in a private arbitration. Should you have questions about the availability of  28 U.S.C. § 1782 to obtain evidence from a person or organization located in the United States, please contact Kenneth N. Rashbaum.