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.

While there are some exceptions, the typical rule in the United States is that discovery is not available prior to the time that a lawsuit is commenced. In this sense, therefore, Section 1782 provides for even broader discovery than is available with respect to U.S. lawsuits because the Supreme Court has held that the statute may be used in connection with a foreign proceeding that is in “reasonable contemplation.”

The prior version of the statute provided for discovery in aid of a proceeding in a foreign “court.” The change to the words “proceeding in a foreign or international tribunal” was made to clarify that the statute was not limited to foreign court proceedings. Thus, the statute has been used in connection with foreign criminal investigations, probate proceedings and administrative proceedings. One of the issues that has received an unusual amount of attention over the past few years is whether Section 1782 should be available to provide for discovery in aid of private, commercial international arbitration proceedings, an issue on which the courts have split.

The important point for in-house counsel is simple. If you are engaged in litigation or other proceedings outside the United States and you are aware of documents or witness testimony in this country that would be useful for you, Section 1782 is a means by which you can obtain that evidence.