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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. Parties or other interested persons involved in international proceedings can 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, pursuant to 28 U.S.C. § 1782. The order may direct that depositions be taken, or documents produced, before a person appointed by the district court. Please see Section X for the text of the provision.
  2. In contrast to the diplomatic approach outlined above, utilizing the procedures under 28 U.S.C. § 1782 allows the party seeking discovery to maintain more control over the timing and manner in which the evidence is collected, since the request can be made directly to the court by the interested party’s attorneys.
  3. On the one hand, Section 1782 is a useful tool for parties that require documents or depositions of persons located within the U.S. in order to advance a position in a non-U.S. proceeding. On the other hand, persons or entities residing in the U.S. who are involved in wholly non-U.S. proceedings may find themselves having to defend against discovery demands in U.S. federal courts, even where such requests would not have been allowed under the non-U.S. tribunal’s own rules. As discussed in more detail below, district courts have broad discretion in determining whether to grant discovery requests under Section 1782.
  4. The primary goals of Section 1782 are to provide equitable and efficient discovery procedures in U.S. courts for the benefit of participants in adjudicative proceedings outside the U.S., as well as to encourage other countries to provide similar means of assistance to U.S. courts. See, e.g., Lancaster Factoring Co. v Mangone, 90 F.3d 38, 41 (2d Cir. 1996).
  5. The United States Supreme Court’s 2004 decision in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), clarified a number of questions concerning the circumstances under which a discovery request under Section 1782 may be granted, as well as the factors a district court can consider in deciding whether to grant such a request. In that case, AMD had filed an antitrust complaint against Intel with the European Commission, and had sought Section 1782 assistance to obtain discovery from Intel in the U.S. In holding that the district court was authorized, but not obligated, to grant AMD’s request, the Supreme Court found, among other things, that:
    1. the category of “interested persons” entitled to assistance under Section 1782 is not limited to litigants in a non-U.S. proceeding, and can include complainants that are involved in non-U.S. administrative actions;
    2. Section 1782 is not limited to pending or imminent adjudicative proceedings, but can be used to aid investigations so long as a dispositive ruling is within “reasonable contemplation”; and
    3. there is no threshold requirement under Section 1782 that the evidence being sought in the U.S. must also be discoverable under the law governing the non-U.S. proceeding.
  6. The Intel decision also confirmed the district court’s broad discretion in considering Section 1782 requests, while suggesting a number of factors to guide that discretion. Those factors are discussed in more detail in Section VIII, below.

Practice Tip: Be aware of Section 1782 when making decisions regarding the best forum for a lawsuit or other legal proceeding. In a non-U.S. forum, a U.S.-based entity may still be open to full U.S.-style discovery, without the corresponding ability to obtain discovery from a non-U.S. adversary.

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