Discovery in the U.S. for Foreign Proceedings Under 28 U.S.C. 1782: Standards, Circuit Split, Procedural Challenges

Description

Multinational disputes involving U.S. companies are not always prosecuted in the U.S. When disputes play out in a foreign forum, but documents and information are in the U.S., 28 U.S.C. 1782 provides the statutory authority and process to follow to obtain that information.

Courts that interpret 28 U.S.C. 1782 apply a multipart test to the availability of discovery, set out in Intel Corp v Advanced Micro Devices Inc. by the Supreme Court. The test asks (a) is the target of the discovery a party to the foreign proceeding; (b) what type of proceeding is pending, and whether the locale of the proceeding allows discovery from the U.S.; (c) whether the request is an attempt to circumvent foreign law; and (d) the level of burden or intrusion of the request.

The Circuits are split on some issues, such as when discovery is in support of arbitration, and so where that discovery is sought matters. For example, courts have ruled both that discovery is and is not available from an arbitration proceeding.

Proceeding under 28 U.S.C. 1782 can be technically daunting. The party seeking discovery must file in the right forum and follow the relevant local rules such that the form of action (usually a miscellaneous "In re" proceeding) is correctly classified for the court.

Listen as this panel of international litigation experts walks through not only the technical steps in bringing such a proceeding but identifies and discusses the conflicts and challenges in this evolving area of the law.