Foreign or International Litigation Seeking Discovery in U.S. Federal District Court ➲ §1782 Petition

Foreign or International Legal Proceedings Seeking Discovery in U.S. Federal District Court ➲ §1782 Petition

Assistance to foreign and international tribunals and to litigants before such tribunals

Section 1782 of Title 28 of the United States Code is a federal statute that allows a litigant (party) to a legal proceeding outside the United States to apply to an American court to obtain evidence for use in the non-US proceeding, a process known as discovery.

Section 1782 of the United States Code states the following:

"(a) The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation.

The order may be made:

1️⃣ Pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal; or

2️⃣ Upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court.

By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement.

The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing.

To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.

A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.

(b) This chapter does not preclude a person within the United States from voluntarily giving his testimony or statement, or producing a document or other thing, for use in a proceeding in a foreign or international tribunal before any person and in any manner acceptable to him."

Section 1782 discovery requests, if crafted appropriately, can be of enormous assistance to non-US lawyers looking to bolster their discovery efforts and chances of success in their home courts.

1️⃣ Letters Rogatory

Insofar as requests to US courts are concerned, the use of letters rogatory for requesting the taking of evidence has been replaced in large part by applications under 28 USC 1782, or Section 1782 Discovery.

Writing in the International Practicum of the New York State Bar Association (1999), Hugh L. Burns and Sharad A. Samy (both New York) have referred to section 1782 as the international litigant's discovery "weapon of choice".

2️⃣ Preliminary Discovery ➲ There is no requirement to wait until the Foreign Legal Proceedings have commenced ...

Pretrial discovery is firmly entrenched in both state and federal laws in the United States (U.S.), and international litigants increasingly look to the U.S.’s generous discovery tools, particularly Section 1782, which provides an avenue to access information from a person or entity residing or found in the U.S. for use in a foreign proceeding.

It is important to understand that you don’t need to wait to commence legal proceedings in a Foreign or International Tribunal before you file the § 1782 petition in a U.S. Federal District Court.

In any event, whether or not you wait until after litigation has commenced, some preparatory work can commence immediately (refer to the step-by-step guide extracted below).

Note that the statute does not say anything about the proceeding being ongoing or already initiated.

The party MUST only identify objective indicia suggesting that the filing or initiation is being contemplated if the proceeding is not yet underway.

“§1782 can be used for litigants engaged, or about to engage, in litigation in a foreign forum.”

However “ it should not be used to enable a fishing expedition, whereby the petitioner uses the discovery process in a blind effort to find damaging evidence to be used against an adversary without any specific underlying legal claims or theory of liability”.

If you file the § 1782 petition before foreign legal proceedings are commenced, it would need to be supported by a declaration from the foreign attorney that:

'⚖️ Identifies Particular Causes of Action;

⚖️ Particular Parties; and a

⚖️ Particular Forum (ie., Civil versus Criminal proceeding) ...

To establish that the foreign legal proceeding is within “reasonable contemplation” as intended by Congress.'

Step-by-Step Guide to obtain §1782 Discovery

The following has been extracted from the step-by-step guide to obtain §1782 discovery published in April 2020 by the International Bar Association.

“A section 1782 petition MUST show that:

·         the target of the discovery either resides or is found in the US jurisdiction where the motion was filed;

·         the discovery sought is for use in foreign ‘proceeding(s)’; and

·         the party seeking discovery is an ‘interested person’.”

Step 1️⃣: Identify the US jurisdiction where the party with the discovery resides

Determining whether a person or entity ‘resides or is found’ in the US is very similar to determining whether a court has personal jurisdiction over a certain individual or entity.

For a natural person, residence is usually the person’s domicile, ie, where that person lives.

For corporations and other entities, the inquiry is a little more complicated, but their residence is typically the jurisdiction where they are incorporated or maintain their principal place of business.

Filing the section 1782 application in the jurisdiction where the party with the discovery resides satisfies that residence requirement.

Caution:

⚖️ Ensure you file sufficient evidence that the party with the discovery's residency is within the Federal Court District; &

⚖️ Serve the party with process when they are physically present in the District.

In In re Escallón, for example, the petitioner, Arturo Escallón, sought deposition testimony and document discovery from two individuals, Patricia and Carlos Ardila, for use in contemplated proceedings in Colombia.

The court denied the petition, in part because Escallón had not shown that the Ardilas resided in the Southern District of New York, meaning that the district was their permanent residence, merely by showing that they maintained an apartment in New York City.

Additionally, the court determined the Ardilas were not ‘found in’ the district because they were not physically present in the district when served with process.

Step 2️⃣: Establish that the discovery is ‘for use in’ a foreign or international proceeding

The party seeking discovery MUST also establish that the documents or testimony sought are ‘for use in a proceeding in a foreign or international tribunal’.

Some courts, including the US Court of Appeals for the Second Circuit, have held that to count as a ‘proceeding’, there must be some dispute regarding liability that the foreign or international tribunal must resolve, imposing a requirement that the proceedings be ‘adjudicative’ in nature.

Other courts, however, have disagreed. The US Court of Appeals for the Eleventh Circuit, which covers Florida, among other states, has held that section 1782 authorises discovery, for example, for use in post-judgment proceedings where liability has already been established.

Apart from showing that the proceeding actually counts as a ‘proceeding’, the party seeking section 1782 discovery MUST also show that the documents or testimony can actually be used in the foreign or international proceeding.

The party does not have to show that it will in fact use the discovery.

The party MUST simply show the ability to use the discovery.

Therefore, if the documents or testimony are subject to exclusion under a foreign rule or privilege, the section 1782 motion may not be successful.

Step 3️⃣: Show that the party seeking discovery is an ‘interested person’

A party to a foreign or international proceeding is clearly an ‘interested person’ under section 1782.

But a person or entity with a mere financial or ideological stake in the proceeding is not.

The space between those two extremes, however, is somewhat unclear.

Where a non-party is seeking section 1782 discovery, courts typically assess whether the person has a right to provide evidence, whether the person has an established relationship (ie, agent-principal or employee-employer) with a party, or whether the person is a creditor.

Step 4️⃣: Overcome discretionary factors

Even where a party has met all three statutory requirements, whether to grant the section 1782 application is left to the district court’s discretion.

In deciding whether to exercise discretion to grant a section 1782 application courts typically consider:

⚖️ Whether the foreign or international tribunal could order the discovery itself;

⚖️ The nature of the tribunal;

⚖️ The character of the foreign or international proceedings;

⚖️ Whether the tribunal would be receptive to US-court assistance;

⚖️ Whether the party seeking discovery is attempting to circumvent proof-gathering restrictions imposed by
the foreign country or international body; and

⚖️ Whether the request is unduly burdensome.

"The party opposing discovery bears the burden of showing that any of those discretionary factors (or other factors) warrant denial of the motion.

It is therefore critically important that section 1782 applications not only satisfy the statutory requirements but also provide the court comfort that the discovery sought is appropriate for the proceedings in which it will be used and is not overly broad.”

Further reading: How to obtain section 1782 discovery: a step-by-step guide - Litigation Committee newsletter article, April 2020 [International Bar Association]

The Globalisation of Discovery: The Law and Practice under 28 U.S.C § 1782 by Lucas v.M. Bento (last updated 18 November 2019).

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