The United States as long been a favorable forum for broad, expansive discovery. Since the 1964 enactment of a modern formulation of 28 U.S.C. §1782, it has also technically been a forum for broad discovery for use in foreign proceedings. In its current formulation, §1782 permits discovery from any person that “resides or is found” in the relevant district “for use in a proceeding in a foreign or international tribunal.” It was not until 2004, however, that the U.S. Supreme Court, in Intel Corporation v. Advanced Micro Devices, 542 U.S. 241 (2004), clarified the broad scope of discovery permitted under the statute. Among other expansive holdings, the court clarified that §1782 discovery may be sought even prior to the initiation of foreign proceedings, so long as future proceedings are “within reasonable contemplation.” Id. at 258-59.
That creates risk. Indeed, foreign parties can seek discovery from domestic parties claiming they will soon initiate foreign proceedings when, in reality, they seek exploratory discovery before suing a target, potentially even in the United States. Financial institutions, asset managers, and consultants are particularly vulnerable targets, as their business practices have a broad global footprint, and they are often viewed as deep pockets for a significant recovery in litigation. For these reasons and others, it is important for practitioners to be aware of the breadth and consequences of §1782 discovery, and to have thoughtful strategies in response.
Trends in §1782 Discovery: Then and Now
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