As litigation becomes more complex, disputes among parties often extend beyond the territorial jurisdiction of U.S. courts. Increasingly, international arbitration tribunals have become the go-to mechanism for the resolution of conflicts with distinct international elements. Be it an international arbitration arising from a bilateral investment treaty or a private arbitration conducted in accordance with the International Chamber of Commerce rules, arbitration―the new norm―has turned the notion of "alternative" dispute resolution on its head.
The breadth of discovery in U.S. courts is typically more expansive than what is permissible in many international forums. Accordingly, sophisticated litigants recognize that there are methods of sidestepping the inherent disadvantages in obtaining discovery imposed by foreign proceedings. One often overlooked and necessary piece of the arsenal is the use of 28 U.S.C. § 1782 to obtain documents or depositions of individuals located within the United States in connection with a foreign proceeding.