Litigation: Statute Allows U.S. Discovery in Aid of Foreign Proceedings
Section 1782 is a powerful weapon in the international litigation toolbox.
May 26, 2010 at 08:00 PM
3 minute read
The original version of this story was published on Law.com
Section 1782 of Title 28 of the U.S. Code (“Section 1782″) is a powerful, though much underused, weapon. It allows parties to proceedings outside the U.S. to come to this country and obtain document production and depositions in aid of those foreign proceedings.
Section 1782 is a uniquely federal court mechanism. Speaking in broad terms, if discovery is sought for use “in a proceeding in a foreign or international tribunal,” Section 1782 authorizes a federal district court to order production of documents, as well as depositions of witnesses, located within that district.
The statute provides that the Section 1782 application can be brought by “an interested person.” Potentially, this allows for some creative arguments as to who is covered by this definition. Without doubt, however, a party to the foreign proceeding qualifies. Thus, the party can bring the application directly and need not obtain letters rogatory from the foreign court. Another interesting feature of practice under Section 1782 is that the application is typically brought by way of an ex parte proceeding. The reasoning behind this is that the court is merely authorizing subpoenas when it grants a 1782 application and it is assumed that the other side will have an opportunity to object prior to the time that compliance with the subpoena is due.
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