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      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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  1. U.S. law does not prevent a person within the U.S. from “voluntarily giving his testimony or statement, or producing a document or other thing, for use in a proceeding in a foreign or international tribunal before any person and in any manner acceptable to him.” 28 U.S.C. § 1782(b). Thus, if a U.S. person (an individual or an entity) is willing to give evidence voluntarily in aid of a foreign proceeding, no formal procedure, or governmental or judicial approval, is required in the U.S. – the interested litigants and the person or entity providing the discovery may agree on a time, place and method for producing the documents or taking the testimony. Note that this voluntary approach would still need to conform to whatever procedural requirements need to be met under the local rules governing the non-U.S. proceeding. To accomplish that, the parties involved in providing or taking the evidence could agree to adhere to any restrictions that are imposed by the non-U.S. tribunal.
  2. The ability to take evidence on a voluntary basis within the U.S. may not be apparent to non-U.S. litigants – a number of countries do not allow evidence to be taken within their borders unless it is through government- or court-approved processes. Brazil is one such country; see, for example, the Department of State’s summary “Brazil Judicial Assistance,” available at http://travel.state.gov/law/judicial/judicial_672.html (explaining that “Brazilian law views the taking of depositions for use in foreign courts as an act that may be undertaken in Brazil only by Brazilian judicial authorities.”).
  3. Despite the openness in the U.S. to the voluntary provision of evidence without recourse to court-ordered processes, note that the non-U.S. tribunal’s own rules may require that the evidence in the case – even evidence from a foreign jurisdiction such as the U.S. – be taken through a court-ordered process; this may be particularly true for oral testimony. In such circumstances, even if you have a willing witness ready to testify under oath or produce documents in the U.S., you may nevertheless need to utilize one of the formal procedures for taking evidence, which are discussed in detail below.

Practice tip: Non-U.S. litigants may not realize that evidence may be taken voluntarily without resort to the courts or to official government channels; however, before proceeding on a voluntary basis, make sure that the non-U.S. tribunal’s own rules will allow such voluntary evidence to be presented in the non-U.S. proceeding.

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