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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. The reference in Section 1782 to the Federal Rules of Civil Procedure suggests that standards for discovery under those Rules should also apply when discovery is sought under Section 1782. Bayer AG v Betachem, Inc., 173 F.3d 188, 191 (3d Cir. 1999); Weber v. Finker, 554 F.3d 1379, 1384-85 (11th Cir. 2009). See also the explanation offered by the Seventh Circuit: “The section 1782 screen—the judicial inquiry that the statute requires—is designed for pre-venting abuses of the right to conduct discovery in a federal district court for use in a foreign court. Once the court has determined that such abuses are unlikely, the ordinary tools of discovery management, including Rule 26, come into play; and with objections based on the fact that discovery is being sought for use in a foreign court cleared away, section 1782 drops out.” Heraeus Kulzer, GmbH v. Biomet, Inc., 2011 U.S. App. LEXIS 1389, at *14 (7th Cir. Jan. 24, 2011).
  2. Section 1782 requests can be initiated in one of two ways:
    1. A letter rogatory issued from a non-U.S. tribunal may be delivered directly to the district court (usually included as part of an application prepared by a party or other interested person).
    2. A party or other interested person may make an application, without a letter rogatory, directly to the district court.
  3. Letters rogatory or applications from interested persons are usually considered by a district court ex parte; once the court orders a subpoena to compel evidence to be served, the party subject to the subpoena can raise any objections by motion to quash. In re Letters Rogatory from Tokyo Dist., 539 F.2d 1216, 1219 (9th Cir. 1976).
  4. Generally, an application will explain what discovery is being sought, why the prerequisites for assistance under Section 1782 are met in the particular instance, and why the district court should exercise its discretion to compel the documents or testimony. An affidavit or declaration accompanying the application should set out any facts about the non-U.S. proceeding that may be relevant to the district court’s decision to order the discovery. The application should address at least the following matters:
    1. The nature of the foreign action.
    2. The applicant’s interest in the action.
    3. The location and address of the person whose material or testimony is being sought.
    4. The relevance of and need for the material or testimony. (If the application is being made pursuant to a letter rogatory issued by the non-U.S. tribunal, there may be less of a need to justify the relevancy of the request.)
  5. If a letter rogatory from the non-U.S. court is included as part of the application, it must be translated into English.
  6. Once the application is granted or order issues, the party served with the order or subpoena can make a motion to quash or modify. Under the federal rules, it is typically the movant seeking to quash or modify a subpoena who bears the burden of persuasion that the subpoena is overly burdensome. See, e.g., Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 48 (S.D.N.Y. 1996).
  7. Notification. When a district court issues a Section 1782 order, it has authority to require that other parties involved in the foreign proceeding be notified of the request in the same fashion as parties to a litigation in federal court are entitled to such notice. In re Merck & Co., 197 F.R.D. 267, 271 (M.D.N.C. 2000).
  8. Standard for review of order under Section 1782. A decision whether or not to order discovery in aid of foreign litigation is reviewed for abuse of discretion. Euromepa S.A., 51 F.3d 1095, 1097 (2d Cir. 1995); United Kingdom v. U.S., 238 F.3d 1312, 1319 (11th Cir. 2001).
  9. Procedure for taking evidence under Section 1782. “The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.” 28 U.S.C. § 1782(a). A court has broad discretion in fashioning a procedure for compelling testimony or the production of documents, and can take into account the Federal Rules as well as any relevant foreign procedures to the extent it wishes. In re Merck & Co., 197 F.R.D. 267, 273-75 (M.D.N.C. 2000).

Practice Tip: Discovery limits in the Federal Rules will likely apply to Section 1782 requests, including limits on travel for depositions under Fed. R. Civ. P. Rule 45(c)(3)(A)(ii), unless specifically overruled in the U.S. court’s order.

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