Global Litigator. Can a U.S. Court Order Foreign Discovery for a Foreign Use?

• Author: Frederick A. Acomb and James L. Woolard
• Pages: 13-14

Published in Litigation, Volume 46, Number 2, Winter 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not

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A German company and an English com-

pany are litigating a dispute in an English

court. The German company seeks third-

party documents, owned by an American

company and warehoused in Mexico, for

use in the English litigation. The German

company retains you—a U.S. lawyer—to

ask a U.S. court to order the domestic

owner to produce its Mexican documents.

Will you succeed?

Under 28 U.S.C. § 1782, U.S. district

courts have the authority to order dis-

covery for use in certain foreign or inter-

national proceedings. The statute serves

two related goals—providing an efficient

means of assisting participants in such

proceedings and thereby encouraging for-

eign countries to provide similar means of

assistance to U.S. courts.

One question repeatedly arises: Does

section 1782 permit discovery of docu-

ments and things outside the United

States? Recent district court decisions

have suggested a trend toward holding

that section 1782, at a minimum, does

not bar discovery of such documents but

that courts still will consider the foreign

location of documents in their exercise of

the discretion given to them by the stat-

ute. That trend was recently validated by

the U.S. Court of Appeals for the Second

Circuit—widely viewed as the leading

court of appeals on legal issues central

to international litigation and arbitration.

Section 1782 establishes three require-

ments for obtaining discovery: (1) The per-

son from whom the discovery is sought

must “reside” or be “found” in the U.S. judi-

cial district where the application is made;

(2) the discovery sought must be “for use in

a proceeding in a foreign or international

tribunal”; and (3) the application must be

made either by a foreign or international

tribunal or by an “interested person.”

Even if those factors are met, the dis-

trict court is not required to order the

discovery, but has discretion whether to

do so. The court is expressly authorized

to prescribe the practice and procedures

for conducting the discovery; otherwise,

by default, the Federal Rules of Civil

Procedure govern.

In Intel Corp. v. Advanced Micro

Devices, Inc., 542 U.S. 241 (2004), the U.S.

Supreme Court described the factors that

should guide the district court’s exercise

of discretion: (1) whether the person from

whom discovery is sought is a participant

in the foreign proceeding; (2) the nature

of the foreign tribunal, character of the

proceedings, and receptivity of the foreign

government or court to U.S. judicial assis-

tance; (3) whether the request conceals

an attempt to circumvent foreign proof-

gathering restrictions or other foreign or

U.S. policy; and (4) whether the discovery

request is unduly intrusive or burdensome.

On its face, the text of section 1782 says

nothing about the location of discoverable

documents and things. And the Federal

Rules of Civil Procedure, which govern

discovery under section 1782 if the court

does not order otherwise, have long been

recognized to permit discovery of docu-

ments and things located abroad.

Nonetheless, district courts have dis-

agreed on the issue, with no clear weight

of authority falling on either side of the

question. In essence, district courts have

fallen into two camps: Some have fo-

cused on the plain language of section

1782, which contains no geographic limi-

tation and cites the Federal Rules. Others

have focused on the legislative history

of section 1782, which may suggest that

Congress intended to cover only discovery

within the United States.

The confusion was partly due to the

lack of clear guidance from the U.S.

courts of appeals and the U.S. Supreme

Court. In a 1997 decision, the Second

Circuit noted, in dicta, the absence of a

geographical restriction in section 1782,

but still opined that “there is reason to

think Congress intended to reach only

evidence located within the United

States.” In re Application of Sarrio, S.A.,

119 F.3d 143, 147 (2d Cir. 1997).

CAN A U.S. COURT

ORDER FOREIGN

DISCOVERY FOR A

FOREIGN USE?

FREDERICK A. ACOMB AND JAMES L. WOOLARD

The authors are with Miller Canfield, in Detroit and Ann Arbor, Michigan, respectively.

Global Litigator