Ch. 14 Discovery in United States in Aid of Proceedings Outside U.S.

1. whether the documents or testimony sought are within the non-U.S. tribunal's jurisdictional reach, and thus accessible absent the assistance of Section 1782;
2. the nature of the non-U.S. tribunal, the character of the proceeding abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal court assistance;
3. whether the Section 1782 request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States; and
4. whether the request contains unduly intrusive or burdensome demands.

See Intel, 542 U.S. at 264-65; In re Microsoft Corp., 428 F. Supp. 2d 188, 194 (S.D.N.Y. 2006).

1. There is no blanket foreign-discoverability rule under Section 1782; a district court is not precluded from ordering discovery when the materials requested are not discoverable under the laws governing the foreign tribunal. Intel Corp., 542 U.S. at 260-61.
2. However, a court should not grant a Section 1782 discovery request in the face of an express objection by the non-U.S. tribunal where the underlying proceeding is pending. In re Microsoft Corp., 428 F. Supp. 2d 188, 194 (S.D.N.Y. 2006). See point IV.D. below for further discussion.
3. In addition, while requests for assistance under Section 1782 are not contingent on the requesting party’s acquiescence to reciprocal discovery, the district court can condition relief upon the reciprocal exchange of information. See Euromepa, S. A. v. R. Esmerian, Inc., 51 F.3d 1095, 1102 (2d Cir. 1995).

1. District courts should consider whether the documents or testimony being sought are within the non-U.S. tribunal's jurisdictional reach, and thus accessible absent the assistance of Section 1782. Intel Corp., 542 U.S. at 264. For example, when the person from whom discovery is sought is a participant in the non-U.S. proceeding, the need for Section 1782(a) aid is not as apparent. See, e.g., In re Microsoft Corp., 2006 U.S. Dist. LEXIS 32577, *9-10 (D. Mass. Apr. 17, 2006) (since European Commission already possesses the documents being sought and can release them if it chooses, there is no need to use Section 1782 to seek the same documents in the U.S.). In contrast, non-participants in the non-U.S. proceeding may be outside the non-U.S. tribunal’s reach; hence their evidence, if available in the U.S., may be unobtainable absent §1782 relief. In Re Imanagement Servs., 2005 U.S. Dist. LEXIS 17025, *10 (E.D.N.Y. Aug. 16, 2005); see also Fleischmann v. McDonald’s Corp., 466 F. Supp. 2d 1020, 1031 (N.D. Ill. 2006) (in Mexican proceeding involving wholly-owned subsidiary of U.S. parent, documents in possession of the parent may not be within reach of foreign tribunal, thus weighing in favor of granting Section 1782 request).
2. However, even if the documents or testimony are technically within the jurisdictional reach of the non-U.S. tribunal, that tribunal’s own rules may prevent it from obtaining the evidence; in such a case, the assistance of Section 1782 may be warranted. See, e.g., In re Servicio Pan American de Proteccion, C.A., 354 F. Supp. 2d 269, 274 (S.D.N.Y. 2004) (while the party whose materials were sought was subject to Venezuelan jurisdiction, production of the necessary documents was likely not obtainable under Venezuelan law).
3. Note that failure to exhaust available discovery procedures from the non-U.S. court does not bar assistance under §1782. Euromepa S.A., 51 F.3d at 1098 (2d Cir. 1995); In re Imanagement Servs., 2005 U.S. Dist. LEXIS 7025, *17 (E.D.N.Y. Aug. 16, 2005); Fleischmann v. McDonald’s Corp., 466 F. Supp. 2d 1020, 1031 (N.D. Ill. 2006); but see In re Digitechnic, 2007 U.S. Dist. LEXIS 33708, *10 (W.D. Wash. May 8, 2007) (finding that while there is no exhaustion requirement under §1782, complete failure to attempt any discovery measures abroad weighs against ordering discovery under Section 1782).

1. Courts should consider whether the non-U.S. tribunal is receptive to the Section 1782 request. Intel Corp., 542 U.S. at 264. A district court will likely deny a Section 1782 request where the non-U.S. tribunal or government has expressly objected to the use of the Section 1782 procedure to obtain evidence. Schmitz v. Bernstein Liebhard & Lifshitz, LLP, 376 F.3d 79, 84 (2d Cir. 2004) (citing specific requests from the German Ministry of Justice and the Bonn Prosecutor to deny petitioners the discovery they sought); In re Microsoft, 428 F. Supp. at 194 (quashing subpoena of documents for use in European Commission proceeding, in part because the Commission asserted by letter to the court that the request was “unduly intrusive and totally at odds with the European rules on access to files” and “apt to seriously harm the Commission's investigation process”).
2. However, absent a clear directive from the non-U.S. tribunal or government, district courts should be wary of denying discovery based on equivocal interpretations of non-U.S. law or policy. Euromepa, 51 F.3d at 1099-1100; Fleischmann v. McDonald’s Corp., 466 F. Supp. 2d 1020, 1032 (N.D. Ill. 2006) (the mere fact that the Section 1782 request did not come from the non-U.S. tribunal by way of letters rogatory does not mean the tribunal would be unreceptive to the evidence); In re Gemeinschaftpraxis Dr. Med. Schottdorf, 2006 U.S. Dist. LEXIS 94161, *21 (S.D.N.Y. Dec. 29, 2006); In re Grupo Qumma, S.A., 2005 U.S. Dist. LEXIS 6898, *8-9 (S.D.N.Y. 2005).
3. Moreover, the non-U.S. tribunal can always place conditions on its acceptance of the information to maintain whatever measure of parity it concludes is appropriate, or to retain control of its process, for example by enjoining the parties from pursuing further discovery or by refusing to consider any of the evidence gathered pursuant to Section 1782. See Euromepa, 51 F.3d at 1101; Intel Corp., 542 U.S. at 262.
4. In addition, a district court need not determine whether the requested discovery is admissible in a foreign proceeding as a prerequisite to granting a Section 1782 request. Fleischmann v. McDonald’s Corp., 466 F. Supp. 2d 1020, 1032 (N.D. Ill. 2006); John Deere Ltd. v. Sperry Corp., 754 F.2d 132, 138 (3d Cir. 1985); In re Proctor & Gamble Co., 334 F. Supp. 2d 1112, 1115 (E.D. Wis. 2004); In re Imanagement Servs., 2005 U.S. Dist. LEXIS 17025, *8 (E.D.N.Y. 2005); In re Letters Rogatory from Tokyo Dist., Tokyo, Japan, 539 F.2d 1216, 1219 (9th Cir. 1976).

1. A discovery request that can be shown to be an attempt to circumvent foreign proof gathering restrictions, limitations and procedures or other policies of a foreign country or the U.S. is unlikely to be granted. In Re Microsoft Corp., 2006 U.S. Dist. LEXIS 32577, *14 (D. Mass. Apr. 17, 2006).
2. District courts will look more favorably upon requests that reflect reasonable efforts to overcome technical discovery limitations or to obtain evidence beyond the reach of the foreign tribunal. In re Imanagement Servs., 2005 U.S. Dist. LEXIS 17025, *18 (E.D.N.Y. Aug. 16, 2005). In re Application of Servicio Pan American de Proteccion, C.A., 354 F. Supp. 2d 269, 274-75 (S.D.N.Y. 2004) (“A foreign court’s procedural discovery limitations as opposed to substantive limits on the admissibility of discovered evidence should not prevent a district court from enabling a foreign litigant to obtain admissible evidence pursuant to §1782.”).
3. The requesting party should have a good faith belief that the materials can be used as evidence in the foreign proceeding. In re Gemeinschaftpraxis Dr. Med. Schottdorf, 2006 U.S. Dist. LEXIS 94161, *24 (S.D.N.Y. Dec. 29, 2006) (a “last resort” effort to obtain discovery in the U.S. was granted, after foreign tribunal declined to order production of documents, where no indication that requesting party was acting in bad faith); In re Grupo Qumman, S.A., 2005 U.S. Dist. LEXIS 6898, *10-11 (S.D.N.Y. 2005) (Section 1782 request granted in part because requesting party had “good faith basis for believing that it will be able to use the evidence” in the foreign proceeding).