Proskauer Rose International Practice Guide Proskauer Rose LLP | Proskauer.com
      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
  TRENDS  |  NEWS & EVENTS  |  CONTACT  |  AUTHORS
Text Size:  A  A  A
Print Print
  1. District courts have broad discretion to fashion a discovery order or deny the discovery request under Section 1782. The Intel case sets out at least four factors that a court should consider in the exercise of its discretion:
    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).
  2. Non-U.S. discoverability and reciprocity
    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 Section D below for further discussion.
    3. 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); see also Minatec Fin. S.a.r.l. v. SI Group Inc., 2008 U.S. Dist. LEXIS 63802, at *29-30 (N.D.N.Y Aug. 18, 2008) (granting Section 1782 application, but ordering reciprocal discovery of Section 1782 applicant).
  3. Non-U.S. tribunal’s ability to reach the evidence at issue
    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 strong. 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 Section 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 in obtaining discovery from a party to the non-U.S. proceeding. 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); In re Application Of Carsten Rehder Schiffsmakler Und Reederei Gmbh & Co., Civil No. 6:08-mc-108-Orl-35DAB, 2008 WL 4642378 (M.D. Fla. October 17, 2008) (finding that discovery could proceed against party to a proceeding pending in China, because “China's rules of procedure relating to discovery are not comparable to our own and […] obtaining the information without this Court's assistance is by no means assured.”); In re Procter & Gamble Co., 334 F.Supp.2d 1112 (E.D.Wis. 2004) (finding that discovery could be sought against a party in the foreign proceedings, where it was not clear if the non-U.S. tribunals could order the required discovery, and because “[i]t is more efficient for a court located in the Eastern District of Wisconsin to order discovery from persons located in such district than to force [the petitioner] to seek the same discovery in as many as five foreign actions and return to this court if its efforts fail.”)
    3. Note that failure to exhaust available discovery procedures from the non-U.S. court does not bar assistance under Section 1782. Euromepa S.A., 51 F.3d at 1098 (2d Cir. 1995); In re Imanagement Servs., 2005 U.S. Dist. LEXIS 17025, *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 Section 1782, complete failure to attempt any discovery measures abroad weighs against ordering discovery under Section 1782).
  4. The receptivity of the non-U.S. tribunal to judicial assistance from U.S. federal courts
    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; but compare In re Application of Babcock Borsig AG, 583 F. Supp. 2d 233, 242 (D. Mass. 2008) (exercising discretion to deny discovery under 1782 until the non-U.S. tribunal “provides some affirmative indication of its receptivity to the requested materials”).
    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).
    5. Because Section 1782 provides that discovery shall be produced “in accordance with the Federal Rules of Civil Procedure,” courts have discretion to order discovery that is relevant to the issues in the non-U.S. proceedings under the standard of Fed. R. Civ. P. 26(b)(1), even if the applicant cannot show that the discovery will be “used” in a hearing before the non-U.S. tribunal. See Weber v. Finker, 554 F.3d 1379, 1385 (11th Cir. 2009).
  5. Circumvention of proof-gathering restrictions or other policies of the non-U.S. country, or of the United States
    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 non-U.S. 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). See also the types of behavior that might count as an abuse of Section 1782 that are described by the Seventh Circuit in Heraeus Kulzer, GmbH v. Biomet, Inc., 2011 U.S. App. LEXIS 1389, at *4-7 (7th Cir. Jan. 24, 2011).
    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.”); compare Aventis Pharma v. Wyeth, 2009 U.S. Dist. LEXIS 105422 (S.D.N.Y. Nov. 6, 2009) (Section 1782 application “is clearly an attempt to circumvent foreign proof gathering restrictions” in France, where the French tribunal has jurisdictional reach over the discovery, and the parties freely chose France (with attendant French discovery rules) as the forum for their dispute).
    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). But see Weber v. Finker, 554 F.3d 1379, 1385 (11th Cir. 2009), finding that discovery that is relevant under Fed. R. Civ. P. 26(b)(1) can be ordered produced under Section 1782, even absent proof that the discovery will in fact be used as evidence in the non-U.S. proceeding.
  6. Unduly intrusive or burdensome requests; protection of privileged or confidential information
    1. Unduly intrusive or burdensome requests under Section 1782 may be rejected or trimmed. Intel Corp., 542 U.S. at 265. Requests must be sufficiently tailored to the litigation issues for which production is sought. In re Digitechnic, 2007 U.S. Dist. LEXIS 33708, *13-14 (W.D. Wash. May 8, 2007) (referring to “broadly-worded and sweeping requests”).
    2. Moreover, “[a] person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.” 28 U.S.C. § 1782(a).
    3. Concern that the production would be unduly intrusive can be overcome in certain circumstances by an appropriate confidentiality agreement. In re Imanagement Servs., 2005 U.S. Dist. LEXIS 17025, *20-21 (E.D.N.Y. Aug. 16, 2005).
    4. The fact that ordering production will require the producing party to translate documents so that they can be reviewed by its U.S. counsel does not make the order unduly burdensome. In re Gemeinschaftpraxis Dr. Med. Schottdorf, 2006 U.S. LEXIS 94161, *27-28 (S.D.N.Y. 2007).

Practice Tip: When pursuing discovery under Section 1782, consider pursuing available discovery procedures before the non-U.S. tribunal before seeking assistance in the U.S. courts. Although it is not a requirement, diligence in trying to first obtain discovery in the non-U.S. forum is an important discretionary factor considered by U.S. courts under Section 1782.

Practice Tip: If opposing discovery under Section 1782, consider whether the non-U.S. tribunal will issue a letter or decision stating it does not require Section 1782 assistance; U.S. courts will likely defer to the non-U.S. tribunal’s own views.

< Previous Section | Next Section >