Proskauer Rose International Practice Guide Proskauer Rose LLP |
      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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  1. 28 U.S.C. § 1781 empowers the Department of State to receive letters rogatory or other types of requests issued by non-U.S. tribunals, and to transmit such requests to the appropriate U.S. agency for execution. 28 U.S.C. § 1782 goes further: it allows the non-U.S. tribunal, as well as certain interested persons such as the parties to the non-U.S. proceeding, to make a request directly to the appropriate federal district court to compel discovery in the U.S. Given the direct access to the federal courts provided by Section 1782, there seems to be little reason to prefer using the Department of State to process such requests, as allowed by Section 1781. Using the procedures provided for by Section 1782 will generally take less time, and will allow the client to retain more direct control over the timing and manner in which the evidence is compelled and ultimately collected, than routing the request through diplomatic channels. (28 U.S.C. § 1781 also empowers the Department of State to receive letters rogatory issued by U.S. courts and to transmit them to the applicable non-U.S. authority for execution; for a discussion about obtaining evidence abroad in aid of a U.S. litigation, see Chapter 13 of this Guide.
  2. However, the rules of some non-U.S. courts may require that any foreign evidence presented in the proceeding be taken pursuant to a letter rogatory issued by the court and, further, that the letter rogatory be executed through official diplomatic channels. In such cases, there may be no choice but to rely on U.S. government agencies to process and execute the request for discovery.

Practice tip: Work closely with local counsel where the non-U.S. proceeding is taking place to identify early on whether or not the non-U.S. court will accept evidence that is procured by direct application to the federal courts by private attorneys, outside of official diplomatic channels.

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