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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. Pursuant to 28 U.S.C. § 1782(a), any party or other interested person involved in an international proceeding, or the international tribunal itself, may make a request to a federal district court for an order compelling discovery from a person or entity that resides or is found in the district in which the court sits. Additionally, 28 U.S.C. § 1781 provides that the Department of State has the power to receive a letter rogatory or a request made by an international tribunal, and to direct the letter rogatory or request to the appropriate U.S. agency for execution.
  2. In light of these two provisions, whenever you are considering taking evidence in the U.S. in aid of an international proceeding, it usually will not matter whether the non-U.S. proceeding occurs in a country that has signed an evidence-taking treaty with the U.S. While the U.S. is a signatory to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, the assistance that the U.S. renders to other signatories under that Convention (allowing for evidence to be compelled within the U.S. in aid of non-U.S. proceedings), is no more than what the U.S. makes available to all qualifying non-U.S. tribunals or other interested persons pursuant to 28 U.S.C. §§ 1781 and 1782, regardless of treaty status. See Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, and the accompanying U.S. Declarations under that Convention, available at http://www.hcch.net/index_en.php?act=conventions.text&cid=82.
  3. Note that while the U.S. is a signatory to the Inter-American Convention On Letters Rogatory and Additional Protocol, the U.S. has exempted itself from the evidence taking portions of that treaty (it has only agreed to the portions of the treaty covering procedural acts of a merely formal nature, such as service of process). See the text of the Convention and the accompanying reservations, available at http://www.oas.org/juridico/english/treaties/b-36.html; see also the Department of State’s summary of the Convention, available at http://travel.state.gov/law/judicial/judicial_5219.html.
  4. The U.S. has also entered into bilateral mutual legal assistance treaties (MLATs) with many states, typically addressing cooperation between enforcement authorities in criminal matters. Such treaties have been held not to diminish the rights of non-state entities to seek discovery assistance pursuant to Section 1782 in aid of non-U.S. criminal proceedings. See Weber v. Finker, 554 F.3d 1379, 1382-1383 (11th Cir. 2009) (defendant in a criminal proceeding in Switzerland could obtain discovery under Section 1782 in aid of her defense, despite the existence of a U.S.-Switzerland MLAT addressing cooperation between the two states in criminal matters).

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