Lawyers fielding discovery requests for foreign legal proceedings now have additional guidance following one federal appellate court’s ruling on the scope of 28 U.S.C. § 1782. The provision allows parties litigating abroad to obtain discovery in the United States for use in a foreign proceeding. However, ABA Litigation Section leaders suggest that courts are unlikely to allow open-ended fishing expeditions.
Mangouras v. Squire Patton Boggs began with a dispute over alleged defects in an oil tanker that sank off the coast of Spain in 2002. Spain filed a civil suit against the agency that certified the tanker as seaworthy in the U.S. District Court for the Southern District of New York, and 10 years later filed criminal charges against the ship’s captain in its own court system. It used the same expert witness in both cases.
In 2013, the captain sought discovery related to Spain’s expert under § 1782. The captain planned to use this information in his ongoing criminal trial and in possible future proceedings, including a privately-instituted criminal proceeding against the expert for allegedly falsifying testimony and a submission to the European Court of Human Rights (ECtHR) regarding due process violations.
There are four requirements for a successful § 1782 application: (1) the person from whom discovery is sought resides (or is found) in the district of the district court where the application is made; (2) the discovery is for use in a live foreign proceeding before a foreign (or international) tribunal; (3) the application is made by a foreign or international tribunal or an interested person; and (4) the discovery does not violate any legally applicable privilege. The district court concluded that the captain met the requirements but denied discovery because he failed to seek the information through “Spanish proof mechanisms.” The U.S. Court of Appeals for the Second Circuit affirmed but indicated that the captain could renew his application if circumstances changed.
In 2017, the captain filed two new § 1782 applications: one seeking expert discovery from the law firm that previously represented Spain, and another seeking materials from the expert himself. The court granted his applications, spurring disputes regarding the scope of the required production.
After resolving the parties’ discovery disputes, the district court determined there was no longer a “live controversy” underlying the § 1782 applications “because the proceedings for which the applications were directed have either been terminated or will not occur.” The court entered final judgment, denying the captain’s request to keep the matter open so he could obtain discovery for a newly filed proceeding before the United Nations Human Rights Committee.
On appeal, the captain admitted that he never filed the criminal action against the expert, and his ECtHR complaint had been dismissed as “manifestly ill-founded.” He argued that the district court nonetheless should have allowed him to proceed with discovery for the United Nations case, even though it had not been mentioned in his § 1782 applications. Meanwhile, the law firm and expert argued that the captain had failed to meet the statutory requirements to obtain any discovery under § 1782.
The Second Circuit found the captain’s appeal moot because the proceedings referenced in the original applications were no longer ongoing. The court refused to leave the door open indefinitely for the later-filed United Nations action, reasoning that the applications would otherwise never be moot because the litigants could invent “novel proceedings in which the disputed discovery could theoretically be used.”
Additionally, the appellate court explained that the captain had not met the “use in a foreign proceeding” requirement of § 1782, which necessitates a “concrete basis” to show that the “contemplated proceeding is more than just a twinkle in counsel’s eye.” When the captain filed his 2017 applications, he had not initiated either the criminal proceeding or the ECtHR complaint. While he filed the ECtHR complaint before the district court ruled on his applications, the Second Circuit held that the criminal action was objectively “speculative.”
Section 1782 applications can be useful for foreign litigants because U.S. discovery rules tend to be more liberal than some other jurisdictions, Litigation Section leaders say. Unlike in the United States, “[w]hen you file suit in civil law jurisdictions like Spain, you need to have a cause of action and a claim at the time you file suit,” explains David Y. Loh, New York, NY, cochair of the Section’s Admiralty Litigation Committee. “They do not usually allow you to get any discovery. You can ask the judge to order one side to produce information, but the opportunity to get that information is very limited.”
Litigants “have become much more sophisticated” in cross-border disputes, according to Loh. They may “take advantage of the liberal discovery rules that are available in the United States when one or more of the litigants have sufficient contacts within the United States or have voluntarily chosen to submit themselves to jurisdiction in the United States,” he observes.
“This case illustrates that due to the delay inherent in § 1782 proceedings, mootness is a serious concern,” states Henry L. Parr Jr., Greenville, SC, cochair of the International Litigation & Dispute Resolution Committee. “The foreign proceeding might be over before United States courts finally resolve issues regarding the § 1782 petition.” Parr advises that “attorneys seeking information under § 1782 should think carefully in describing the proceedings for which the information is requested. To the extent that there are proceedings that will likely last longer, those proceedings should be included on the application.”
