August 10, 2015

Compelling Discovery for Foreign Arbitrations

J. Brittany Cross Carlson – August 10, 2015

In today's global economy, product manufacturers resource materials and components, sell their products, and expose themselves to potential litigation in countries far from the manufacturer's home base. While clients may understand—though they may not like—their obligations to participate in discovery as a party to a products liability dispute, they also may be subject to the same discovery requirements even though they are not a party in matters pending in foreign jurisdictions. One avenue to compel discovery in the United States for use in proceedings in foreign jurisdictions is 28 U.S.C. section 1782.

Section 1782 permits a foreign tribunal to request judicial assistance in compelling discovery by submitting a request or letter rogatory to the U.S. district court in which the party from whom the discovery is sought resides. In addition, an "interested party" in the foreign proceeding can apply directly to the U.S. district court for an order to compel discovery. If the requirements of section 1782 are met, the district court may, at its discretion, order that the party produce an individual or corporate representative for deposition, or compel the production of documents. There is no requirement that the information sought under section 1782 also be discoverable according to the rules governing the foreign proceeding. As with traditional discovery in U.S. litigation, complying with such an order can require significant time and resources. There are, however, several arguments to be made in seeking to quash a section 1782 request or vacate an order for section 1782 discovery, including failure to meet the statutory requirements.

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