Advance Sheet. Statute Without a Home

• Author: Robert E. Shapiro
• Pages: 58-61

Advance Sheet

Published in Litigation, Volume 47, Number 3, Spring 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 58

ROBERT E. SHAPIRO

The author, an associate editor of Litigation, is with Barack Ferrazzano Kirschbaum & Nagelberg LLP,

Chicago.

Not much about 28 U.S.C. § 1782 would

likely catch the attention of most litigators

going about their daily business. Chances

are they will never encounter the statute

in their entire careers, so irrelevant is it to

ordinary litigation. The statute provides

a mechanism for discovery in the United

States by persons caught up in litigation

abroad and is wholly inapplicable to do-

mestic proceedings. Moreover, there is

nothing about the discovery provided to

these foreigners that would strike an or-

dinary practitioner as unusual or different

from what is customary in regular practice

in the U.S. A non-factor, it seems, for par-

ties and practitioners alike, especially those

that keep their matters close to home.

If there were any feature of the statute

that would seem to be worth remarking

on, it might be that it expressly calls for

oversight by a federal judge. This might

stir some feelings of envy by the U.S. liti-

gator who pines for a more hands-on ap-

proach to discovery by his local judiciary,

even if judicial oversight of day-to-day

discovery can be a two-edged sword. But

the statute’s uniqueness in having this

oversight mechanism would seem to be

easily explained by the need to give com-

fort to a foreign party having to traverse

the unfamiliar ground of American discov-

ery. That foreign entity would be told by

its U.S. lawyer that there is nothing here

but what is typical in civil litigation in the

United States, garden-variety discovery

under Rules 26–37 of the Federal Rules

of Civil Procedure.

Still, given how the business world has

been contracting in recent decades, sec-

tion 1782 may at least be worth knowing

about and pondering over a bit. Should

you ever have a client that gets caught up

in some kind of proceeding abroad and

would benefit from internal informa-

tion about an adverse party located here,

it is a kind of secret weapon. Whereas

the foreign proceeding might be one in

which nothing like American discovery

is permitted, your client can seek out its

adversary here in the United States, and

section 1782 promises access to a world

of information that it might otherwise

find unavailable. There are traps here

for the incautious, however. Should your

client have business both in the United

States and in foreign countries, an over-

seas litigant can nail your client here with

full-fledged discovery for use abroad, in

proceedings not just taking place, but

also concerning something relating only

to business, in that foreign jurisdiction.

More than one foreign executive accus-

tomed to unconstrained visits to his hold-

ings or lawyers in the United States has

been unhappily confronted by the prover-

bial sleazy process server, who steps out

from behind a potted plant at a restaurant

or social venue to hand the executive a

document or deposition notice under 28

U.S.C. §1782.

Also, if you regularly serve overseas cli-

ents, section 1782 has a tendency to gum

up international litigation strategies. It

is not uncommon to find that it is easier

and cheaper to pursue litigation against

another party by filing abroad. The deci-

sion to take this approach will likely be

dominated by substantiative law concerns,

but it may offer the additional bonus that

the litigation there may proceed without

the possibility of American-style investi-

gations into documents or the testimony

of witnesses. Should the opposing party

become aware of section 1782, however,

you can find that your best laid discovery-

free plans will come to naught.

Moreover, there’s a little-noticed ele-

ment of section 1782: it is silent on the

scope of what must be produced. If it is

as broad as practice in the U.S. allows, us-

ing our relevance and burden standards,

it may extend to documents or even wit-

nesses not directly involved, or expected

to participate, in the foreign proceeding.

Even if there is a judge appointed by the

statute to regulate the application of the

discovery rules and protect against its

open-ended provisions, there are no guar-

anties she will have any understanding of

the foreign proceeding or see any reason

STATUTE WITHOUT

A HOME