As transnational litigators know well, obtaining foreign discovery can be one of the most challenging and resource-intensive aspects of the practice. Recently, however, 28 U.S.C. §1782 has roared onto the legal scene and established itself as a crucial tool in the transnational litigator’s arsenal. Section 1782 provides for the production of documents and evidence, as well as the taking of testimony, of persons located within the United States for use before a foreign tribunal. Attorneys litigating in foreign jurisdictions are well advised to gain an appreciation for the discovery-producing power of this long-underappreciated statute.
Without section 1782, litigants seeking evidence located in the United States for use in a foreign jurisdiction must resort to the complicated, often unreliable, and idiosyncratic letters rogatory process. Section 1782, however, permits litigants and parties interested in foreign proceedings to obtain discovery in the United States for use in foreign proceedings pursuant to the traditional and familiar methods provided by the Federal Rules of Civil Procedure.
For many litigators, using the federal rules as the operative discovery mechanism is indeed the most appealing aspect of section 1782 discovery. Once a district court answers the threshold question of whether section 1782 discovery is proper, “the federal rules [26–36] contain the relevant practices and procedures for the taking of testimony and the production of documents.” Gov’t of Ghana v. ProEnergy Servs., LLC, 677 F.3d 340, 343 (8th Cir. 2012). In other words, once section 1782 discovery has been deemed proper, the statute effectively drops out and the regular federal discovery provisions dictate. This is a uniquely important provision of the Federal Rules of Civil Procedure for any transnational litigator, particularly one who is litigating in a foreign jurisdiction with a less-than-robust or otherwise compromised judicial system.
When presented with a section 1782 application, the district court first must determine whether the basic statutory requirements are met. Once those are established, the court is free to exercise its broad discretion to permit or deny 1782 applications. See Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76, 80 (2d Cir. 2012). The statutory requirements are remarkably straightforward and generally are met easily. District courts may grant a section 1782 application where:
1) the person from whom discovery is sought resides (or is found) in the district of the district court to which the application is made;
2) the discovery is for use in a foreign proceeding before a foreign tribunal; and
3) the application is made by a foreign or international tribunal or any interested person. On finding that the statutory requirements are met, the district court can consult the Supreme Court’s specific guidance concerning how to exercise its discretion. In Intel Corp v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), the Supreme Court outlined several factors district courts should consider in weighing a 1782 application:
• Jurisdiction. Are the documents or testimony sought within the non-U.S. tribunal’s jurisdictional reach and thus accessible absent 1782 discovery?
• Systemic Questions. What is the nature of the non-U.S. tribunal, the character of the foreign proceeding, and the receptivity of the foreign jurisdiction to U.S. assistance?
• Genuineness of Request. Does the section 1782 petition conceal an attempt to circumvent foreign proof-gathering procedures or other policy (in the interests of comity in particular)?
• Intrusiveness. Is the application unduly intrusive or burdensome?
The factors seem straightforward enough, but navigating the contours of section 1782 proceedings can be challenging. First, the discovery sought must be for use in a “foreign tribunal,” the definition of which is the subject of a circuit split and remains unclear. But it is clear that the discovery may not be sought exclusively for the purposes of a domestic proceeding, or solely for press or public-relations purposes.
In addition, as with domestic subpoenas, discovery sought from third parties (who frequently are the targets of section 1782 subpoenas) is subject to a burden analysis. If the burden on the third party is high, a court in its discretion is less likely to grant the discovery request in full; the court may engage in a lengthy limiting process or may simply opt to deny the application in full. Parties seeking section 1782 discovery must therefore be particularly aware of the need to limit their discovery requests to pertinent and limited issues in an effort to restrict the intrusiveness or burden of the subpoena. In fact, recent experience teaches that an overly broad application for discovery (or, indeed, an overly broad objection to such an application) stands a good chance of simply being denied in its entirety. See, e.g., In re Application of Mesa Power Group, LLC, 878 F. Supp. 2d 1296 (S. D. Fla. 2012) (rejecting respondent’s “all-or-nothing” approach).
Consider also that section 1782 offers access only to documents and testimony from individuals present within the United States. This is particularly useful in transnational litigation featuring a major U.S. component, but it may prove unhelpful in cases in which the overwhelming majority of conduct occurred, or individuals targeted are located abroad. However, considering that documents responsive to section 1782 subpoenas are subject to production if they are in the “possession, custody or control” of the subpoena target, documents located abroad may be deemed subject to section 1782 discovery in any event.
Foreign Tribunals and Evidence
One of the key questions Intel directs district courts to ask is whether the discovery is being collected in the United States for use before a foreign tribunal. Put another way, is the foreign tribunal receptive to the evidence? Considering Congress’s clear intent that section 1782 discovery be granted liberally, however, courts have interpreted broadly the receptivity prong to avoid a fact-intensive, case-by-case analysis of whether the foreign body might accept the evidence. The receptivity analysis has, indeed, been so sharply limited that district courts are proscribed from analyzing whether the discovery sought is admissible in the subject jurisdiction. See Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76, 82–84 (2d Cir. 2012). Indeed, the evidence sought need not even be discoverable under the laws of the foreign jurisdiction. Intel, 542 U.S. 241, 253 (2004).
Another key area of dispute among the circuits is the definition of a foreign “tribunal.” Note that the leading Supreme Court case, Intel, stands for the proposition that “first-instance decision-making bodies,” such as foreign commissions, constitute tribunals for section 1782’s purposes. The Second, Third, and other circuit courts have defined liberally what constitutes a tribunal, including in that category private arbitral bodies such as the Permanent Court of Arbitration at The Hague, Netherlands. For example, the Fifth Circuit held that a private international arbitral panel did not constitute a tribunal for section 1782 purposes, even after Intel, because Intel did not directly address that issue. Republic of Kazakhstan v. Biedermann Int’l, 168 F.3d 880, 881 (5th Cir. 1999). But the Eleventh Circuit recently held that a private arbitral tribunal falls within 1782’s definition of a foreign tribunal. Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., No. 11-12897, 2012 U.S. App. LEXIS 12949 (11th Cir. June 25, 2012). Prior to filing your application, it pays to research what, if anything, the relevant appellate court has said on this foundational matter.
An additional benefit to remember is that section 1782 discovery may be available even to non-parties to the litigation. The statute, after all, provides for discovery by an “interested person” in the foreign litigation. Courts have interpreted this to include people not party to the foreign litigation. In re Oxus Gold Plc, No. 06-82-GEB, 2007 LEXIS 24061 (D.N.J. 2007) (finding that “interested person plainly reaches beyond the universe of persons designated ‘litigant.’”) (internal quotations omitted).
And finally, Intel has construed section 1782 discovery so liberally as to permit discovery even where the foreign proceeding is not pending or even imminent. Rather, the proceeding for which discovery is sought merely must be “in reasonable contemplation” (whatever that may mean). This provides a boon to potential foreign litigants, who can now obtain a handy preview of the evidence to assist them in settlement discussions and legal strategy even before litigation has been commenced.
Any transnational litigator does his or her client a serious disservice by failing to consider pursuing discovery through section 1782. True, there are some initial burdens of establishing entitlement to such discovery, several discretionary factors, and circuit splits. But the familiarity of the procedures, the broad potential scope of such discovery, and the vital evidence that can be obtained leave little doubt that the potential evidentiary juice is certainly worth the section 1782 squeeze.