Section 1782 is a Little-Known Superpower for Foreign Litigants
Litigants outside the U.S. are finding the use of 28 U.S.C. §1782 can be a secret weapon that leads to victory. Yet many don't recognize or realize the power the section provides. It can be used to provide documents and testimony from U.S. residents and corporations that often aid a case in a foreign court. However, a Section 1782 filing can be a complex process and even those who are aware of Section 1782 are unsure how to find success with its use. Lori Marks-Esterman of Olshan explains why they are used, some of the complexities involved and how they can help those outside the U.S. obtain information that may ultimately help lead to successful outcomes.
March 07, 2024 at 10:00 AM
5 minute read
Foreign litigants can often benefit from testimony and discovery of information residing in the United States. Once granted, Section 1782 subpoenas have the full scope and authority of domestic discovery, providing a powerful tool in foreign litigation. 28 U.S.C. §1782 ("Section 1782") permits production of documents and testimony in the United States for use in foreign litigation.
While the statute is seemingly straightforward, navigating the legal landscape of Section 1782 can pose challenges and the application is discretionary. Recent decisions denying Section 1782 applications show the pitfalls applicants often get tripped up on.
|The Statute Explained
Section 1782 is a federal statute that allows U.S. district courts to compel a person or entity "found" in the U.S. to produce discovery in connection with a foreign proceeding. A court analyzes a Section 1782 application in two phases:
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