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      Proskauer on International Litigation and Dispute Resolution:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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  1. It is one thing for a U.S. court to defer to ongoing litigation or proceedings in non-U.S. courts or other tribunals. Can the U.S. court go even further and lend specific aid to a non-U.S. proceeding? It can and often does. One means of doing so is through the application of 28 U.S.C. § 1782 (1994 & Supp. 2007).
  2. 28 U.S.C. § 1782 addresses non-U.S. and international requests for American discovery for use in non-U.S. and international tribunals. § 1782(a) has three requirements:
    1. A discovery request must be made by a non-U.S. or international tribunal or any interested person;
    2. to a district court in the district where the requested person resides or may be found; and
    3. must be for use in a non-U.S. proceeding in a non-U.S. or international tribunal. Id. at (a).
  3. Orders for American discovery “may be made pursuant to a letter rogatory issued, or request made, by a non-U.S. or international tribunal or upon the application of any interested person.” Id.
    1. The U.S. Supreme Court interpreted 28 U.S.C. §1782(a) in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004).
      1. The Intel action commenced when the Commission of the European Communities declined the respondent’s request to obtain documents produced by the petitioner in a separate case adjudicated in Alabama. Respondent then petitioned a U.S. District Court under §1782 to mandate the petitioner to produce the documents. The District Court held that §1782 did not authorize such discovery. The Ninth Circuit reversed and remanded, instructing the District Court to rule on the merits of the respondent’s application. The U.S. Supreme Court again reversed, holding that § 1782 does not mandate federal courts to impose American discovery in assistance to a complainant in a European Commission proceeding complainant. Id. at 246-247. Rather, courts have discretion in granting § 1782(a) discovery requests. Id. at 247.
    2. The Intel court explained the text and meaning of §1782.
      1. “Interested persons” does not limit the statute to non-U.S. litigants, sovereigns, or agents. Intel Corp., 542 U.S. 241, 256-57 (2004);
      2. “For use in a foreign tribunal” includes use in both non-U.S. courts and quasi judicial agencies. Id. at 257-58;
      3. § 1782(a) does not require that non-U.S. proceedings be imminent or pending. Rather, it only requires that a ruling be within “reasonable contemplation” Id. at 258-59
      4. § 1782(a) does not require that requested information be discoverable in the location of the non-U.S. proceedings. Therefore, courts may order persons to produce materials that a non-U.S. court could not compel those persons to produce if present in the non-U.S. jurisdiction. Id. at 260-63
    3. District courts are not required to grant § 1782 discovery requests just because they have the authority to do so.  In re Patricio Clerici, 481 F.3d 1324, 1334 (11th Cir. 2007), cert. denied, No. 07-236, 2008 WL 114030 (U.S. Jan. 14, 2008).  Once the prima facie elements of § 1782 have been met, courts should consider four additional factors when deciding whether to grant the discovery request:
      1. whether the discovery-seeking party is a participant in the non-U.S. proceeding;
      2. the nature of the non-U.S. tribunal;
      3. the character of the proceedings underway abroad; and
      4. the receptivity of the non-U.S. government or court agency to U.S. federal-court judicial assistance. Id. at 263.
    4. Although courts have discretion in granting § 1782(a) discovery requests, the Second Circuit has explained that district courts may not impose “extra-statutory requirements . . . by failing to take note of the twin aims of the statute,” which are “providing efficient means of assistance to participants in federal court international litigation and encouraging non-U.S. countries to provide similar means of assistance to our courts.” Metallgesellschaft, 121 F.3d at 79. In Metallgesellschaft, the Second Circuit explained that lower courts could not refuse discovery based upon its unavailability in a non-U.S. court. Id. at 80.
    5. Whether to bring suit within the U.S. or abroad is important because courts generally have broad discretion in whether to grant § 1782 requests. Appellate courts may overturn district court decisions when a district court has abused its discretion. In re Patricio Clerici, 481 F.3d  at 1331. Appellate review is therefore limited and deferential. Id.  The abuse of discretion standard that applies is identical to the standard used in reviewing a district court’s other discovery rulings.  Id. 
    6. §1782(b) explains that persons may voluntarily assist non-U.S. litigation by submitting documents or statements. 28 U.S.C. §1782(b).

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