Section 1782 Filings for Foreign Discovery in the United States
Using 28 U.S.C. Section 1782 Applications to Obtain Discovery of Documents, Evidence and Testimony in the United States
28 U.S.C. Section 1782 allows for the production of documents, evidence and testimony from or by individuals or businesses located in the United States for use before a foreign tribunal. If you are a transnational lawyer or litigant – or interested non-party – with a case pending or planned before a foreign tribunal, you may take advantage of this valuable discovery tool. The Jacobs Law, LLC is available as local counsel to file Section 1782 applications with the Federal District Court in Massachusetts and otherwise pursue discovery requests on behalf of foreign litigants and interested non-parties.
The Jacobs Law Can Draft & Submit
Your Section 1782 Application
A Boston Civil Litigation Lawyer at The Jacobs Law LLC (also referred to as a Solicitor or Barrister in foreign jurisdictions) will review the facts of your foreign case (or planned case), advise you as to the applicability of Section 1782 and the discovery sought and, where appropriate, file the Section 1782 application with the Federal District Court of Massachusetts as local counsel. Lawyers at The Jacobs Law LLC will draft all the documents required to properly submit the Section 1782 application, litigate the issues or motions for protective orders, and pursue the documents, evidence and testimony, as necessary.
Section 1782 Applications Are a Better Alternative to Letters Rogatory in the United States
Section 1782 Applications are an excellent alternative to the cumbersome Letters Rogatory procedure. Section 1782 allows foreign litigants and interested parties (which is broadly defined to include even non-parties) involved in foreign proceedings to obtain the production of documents, evidence and testimony in the United States for use in a foreign proceeding. The scope of ‘foreign proceeding’ is also interpreted quite broadly, although there is a split in certain circuit courts in the United States, even private foreign arbitral bodies such as the Permanent Court of Arbitration at The Hague have been found to constitute a ‘foreign tribunal’. The ‘foreign proceedings’ need not even be currently instituted–they may be “in reasonable contemplation”. This provides foreign litigants with the ability to obtain substantial amounts of pre-litigation documents, evidence and testimony for use in settlement discussions as well as planning a strategy for planned litigation. Once a Section 1782 Application is accepted / allowed, the Federal Rules of Civil Procedure apply to the proceedings and any discovery requests and procedural issues.
Threshold Requirements for Section 1782 Applications
To be sure, there are threshold requirements that must be met, including the following:
the person or entity from whom the documents, evidence or testimony is sought must reside (or otherwise be located) within the geographical district of the federal district court at which the Section 1782 Application is filed;
the discovery information sought to be obtained must be for use in a foreign proceeding before a foreign tribunal – but, as above, this is interpreted rather broadly;
the Section 1782 Application must be made by a foreign or international tribunal or any interested person including both parties and non-parties (albeit, interest non-parties);
Once these statutory requirements are met, it is within the discretion of the Federal District Court to allow or deny the Section 1782 Application. The United States Supreme Court, in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) has established several clear factors to be used in determining whether to allow or deny a Section 1782 Application.
Factors Used to Admit or Deny a Section 1782 Application
Jurisdictional Reach — whether the documents, evidence or testimony sought is already within the jurisdictional reach of the non-U.S. / foreign tribunal without the use of or need for filing a Section 1782 application;
Nature and Character of the Foreign Proceeding — as above, the scope of what constitutes a ‘foreign proceeding’ is very broadly interpreted and even certain private foreign arbitral bodies have been found to be within the scope by certain circuit courts;
Receptivity of the Foreign Jurisdiction — whether the foreign tribunal will accept the documents, evidence or testimony. However, this has been shown to be a very cursory evaluation. Courts will not engage in a fact-intensive analysis of whether the foreign tribunal will admit or accept the evidence, or even whether the discovery sought is discoverable in the foreign jurisdiction;
Circumvention of Foreign Procedures — whether the Section 1782 Application is being used as a way to avoid the procedures of the foreign jurisdiction applicable to fact-finding and evidence-gathering;
Burden — whether the Section 1782 Application is unduly burdensome on or intrusive of the person or entity from whom the discovery is sought.
‘Discretion’ Tested, Discovery Denied
In an odd recent attempt to utilize §1782 in a US arbitration proceeding taking place in Virginia, with US arbitrators applying New York law, the US District Court for the District of Massachusetts re-emphasized the fact that discovery orders pursuant to §1782 is purely discretionary. In Re: Application of Hanwha Azdel, Inc. and Hanwha L&C Corp. for Assistance Before a Foreign Tribunal (C.A. No. 13-mc-93004-MAP) (Oct. 29, 2013). “[T]he court will exercise its discretion to decline to permit discovery pursuant to [28 U.S.C.] §1782 in the circumstances of this case. In Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), the Supreme Court determined that discovery under §1782 is authorized, though not required, when ‘(1) it is directed at a resident of the district in which the court sits; (2) it is intended for use before a foreign tribunal; (3) it is based upon the application of a person interested in a foreign proceeding; and (4) it does not require disclosure of privileged materials.’
The Court continued, “Even when these four criteria are met, however, the court merely has the discretion to order discovery. The scope of that discretion is governed by four additional factors.” (emphasis added). The Court laid out the four discretionary criteria which are, essentially, the factors used to admit or deny a Section 1782 application as stated above:
- whether the request is overly intrusive or burdensome;
- whether the person from whom discovery is sought is a party to the foreign proceeding;
- the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign tribunal to federal-court assistance; and
- whether the request appears to be an attempt to circumvent foreign proof-gathering procedures of the foreign tribunal.
The Statutory Language of 28 U.S.C. Section 1782 is Clear:
28 U.S.C. § 1782. Assistance to foreign and international tribunals and to litigants before such tribunals: (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 pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or 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.
THE JACOBS LAW | Your Attorneys for Section 1782 Applications
A Business Attorney at The Jacobs Law LLC can assist you in obtaining discovery in the United States through the use of a 28 U.S.C. Section 1782 Application filed in Federal Court. Contact a Boston Business Attorney at The Jacobs Law LLC today to conduct discovery in the United States.