As the marketplace continues to grow more global, the resolution of disputes has felt the effects, particularly in the area of discovery. Where litigation arises in a foreign nation, and a witness capable of providing valuable material discovery is not within the jurisdiction of the tribunal, the litigation process can be frustrated. In recognition of the growing need for cooperation amongst international tribunals, the American legislature has provided a means for addressing discovery in aid of foreign proceedings. Under 28 USC §1782, where an interested party in a foreign proceeding requires discovery from a person who is found within the jurisdiction of the United States, an ex parte application for a discovery order can be sought from the federal district court.
Section 1782 is limited to two forms of discovery: (1) oral testimony; and (2) production of documents or things. A party pursuing discovery under section 1782 must do so in the district where the target of the discovery resides or is found. Section 1782 provides two methods by which to proceed, the proponent must decide whether to proceed by letter rogatory or by application. A letter rogatory involves a formal request from a foreign court for judicial assistance. Alternatively, the discovery proponent may proceed by applying directly to a U.S. district court by initiating a new case for the limited purpose of obtaining discovery. This can be done by making an ex parte application for issuance of a subpoena pursuant to 28 U.S.C. § 1782. The application must be supported by a memorandum of law and evidence to showing that the statutory requirements, are met. The Applicant must show that the discovery target resides or is found in the district of the court’s jurisdiction, the existence or contemplation of foreign or international proceedings, and the applicant’s interest in the matter.
The granting of a subpoena under section 1782 is not mandatory, but discretionary. Thus, a section 1782 application must address the discretionary factors identified by the Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264-65 (2004): (1) whether the discovery target is a participant in the foreign proceeding; (2) the nature of the foreign tribunal, the character of the foreign proceedings and the receptivity of the foreign authority to U.S. judicial assistance; (3) whether the discovery request conceals an attempt to get around foreign restrictions on proof-gathering; and (4) whether the request is unduly burdensome. The reviewing court will review the application and consider the discretion factor before determining whether to grant or deny the application. If the application is granted, the court will permit a subpoena to be issued.
Once a subpoena issued, the responding party that does not want to comply may raise objections to responding, file a motion to quash, or seek a protective order. If the responding party raises objections, a motion to compel may be pursued. In deciding a motion to compel, the court will look to the substantive standards set forth in section 1782. If the responding party should succeed in arguing that the applying party has not met one or more of the requirements under section 1782, whether by objections or motion to quash, the court’s order is immediately appealable. A third option available to responding party’s is to seek protective orders. It is in the court’s discretion to limit discovery to avoid such matters as undue burden and costs of compliance.
When section 1782 took effect, the legislature intended to promote judicial cooperation both in the United States and abroad by way of setting an example for international cooperation. A distinct benefit to making application in aid of foreign discovery under section 1782, is that discovery can be granted before the lawsuit is commenced. This is especially beneficial because under section 1782, the applicant does not have to request the discovery from the foreign tribunal before making an ex parte application in the United States federal court. As the global market continues to expand and international litigation increases, section 1782 will provide an invaluable tool for dispute resolution.
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