The upsurge in international commerce, including in countries not traditionally open to Western businesses, has led to an increase in foreign legal proceedings. A domestic company that is not a party to such a proceeding nevertheless may find itself being dragged into the fray. One federal statute in particular, 28 U.S.C. Section 1782, has the potential to give in-house counsel headaches.
American discovery rules tend to be more generous than the rules of many foreign countries, and Section 1782 gives litigants in a foreign proceeding a way to obtain American-style discovery from U.S. courts. Specifically, the statute gives the federal district courts the power to compel a person residing or found in that court’s jurisdiction to give testimony, provide a statement or produce documents for use in proceedings before a foreign tribunal. This allows the foreign litigant to make a direct application for discovery to the district court where the evidence is believed to be located, without resorting to more cumbersome devices like letters rogatory.
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