The Eleventh Circuit's Rendezvous With Section 1782
| Publication year | 2020 |
The Eleventh Circuit's Rendezvous with Section 1782
Emory Larkin
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As the 2020 election draws near, the United States' divide on matters of foreign relations is more polarized than it has been in decades. Therefore, case law interpreting statutes such as 28 U.S.C. § 17821 —which provides an avenue to aid litigation in foreign countries—is increasingly relevant in today's society. Section 1782 proceedings do not usually make the front page of the news, and most attorneys can practice their entire career without ever coming across the statute at all, nevertheless, Section 1782 is an important part of foreign litigation and international relations and has been for over 150 years.
Section 1782 proceedings have become more relevant throughout the United States, and at this point, every circuit, and most district courts have dealt with numerous cases invoking a Section 1782 application. The statute allows parties of foreign litigation to file an application requesting the help of the United States in providing domestic discovery materials to litigation happening outside of the United States. In doing so, Congress hoped to provide an efficient avenue to aid foreign litigants as well as show other countries that the United States cooperates with foreign proceedings with the hope that other countries will do the same.2
Section 1782 has statutory requirements that an applicant must meet in order for their application for discovery aid to be granted.3 The power to grant or deny the application has been given to the district courts.4 In addition to the statutory requirements, the courts have developed discretionary factors to consider in light of the statute's purpose.5
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Through the decision of Intel Corporation v. Advanced Micro Devices, Inc.,6 the Supreme Court of the United States expressly stated the factors that must be considered and while presumably helpful, it also opened the door to critical questions.7
This year, in 2019, the case of Dep't of Caldas v. Diageo PLC8 presented two of such issues to the United States Court of Appeals for the Eleventh Circuit as a matter of first impression.9 The issue of who bears the burden of proof as to the discretionary factors is one of these questions, and while other circuit courts have ruled on this issue, the Eleventh Circuit has not. The Eleventh Circuit also decided an issue of first impression, for not only this circuit but the other circuits as well, when it held that granting a partial Section 1782 application is allowed even when an applicant filed jointly with other applicants who may not meet the statutory requirements.10
In deciding these issues of first impression in Dep't of Caldas, the court used a rational and balanced approach and ultimately set the stage for a common-sense interpretation of the goals of 28 U.S.C. § 1782.11
To provide context, the Republic of Colombia is divided into thirty-two territories which are referred to as Departments.12 In 2016, four of those Colombian Departments prepared to sue two liquor companies in the Republic of Colombia for unfair competition.13 The unfair competition claim centered around alleged smuggling of the liquor company products into Colombia.14
In June of 2016, the Colombian Departments, in light of the anticipated litigation of a foreign proceeding, filed a joint application to obtain discovery under 28 U.S.C. § 1782. The four Departments—Caldas, Cundinamarca, Valle del Cauca, and Antioquia—sought to depose five previous employees of the liquor companies of Diageo PLC, Seagrams
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Sales Co. Ltd., and Pernod-Ricard S.A. The five previous employees were non-party witnesses to the case. The liquor companies filed an opposition to the Section 1782 application.15
The United States District Court for the Southern District of Florida referred the application to the magistrate court which issued a report recommending the denial of the Departments' application.16 The magistrate's reasoning was based primarily on the fact that although two of the four Departments—Valle del Cauca and Cundinamarca—satisfied the statutory requirements, granting the application for those two Departments would basically grant it to all four Departments. The magistrate judge recommended that because all four Departments would benefit from the discovery—even though only two Departments satisfied the statutory requirements—the discretionary factor weighing whether the discovery request circumvents the statute's purpose would be violated too strongly.17
The magistrate court also decided that the second factor, the receptivity of the foreign tribunal of the United States judicial assistance could not be evaluated because an actual proceeding had not been commenced. The magistrate court recommended the district court should, therefore, use its discretionary powers to deny the application as a whole.18
The district court adopted the recommendation in part and denied the recommendation in part, finding ultimately that Valle del Cauca and Cundinamarca met the statutory requirements and the discretionary factors weighed in favor of granting the application to those Departments only.19 The district court disagreed with the magistrate's report that the factor of receptivity could not be evaluated.20 With a lack of controlling precedent, the parties argued over which side had the burden of proof in establishing the foreign tribunal's receptivity.21
The district court concluded that both sides would bear the burden of proof because of the nature of the discretionary factors.22 The district court also disagreed with the recommendation that the statute's goals would be circumvented if two of the four Departments were granted the application, if those two Departments satisfied the statutory
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requirements and discretionary factors.23 Ultimately, the district court granted the application for discovery with respect to Valle del Cauca and Cundinamarca and denied the application for Caldas and Antioquia.24 The liquor companies appealed.25
On appeal, the Eleventh Circuit addressed two issues of first impression and affirmed all other issues.26 The issues of first impression concerned, (1) who bears the burden of proof in regard to the receptivity factor, and (2) whether the application could, in fact, be granted in part or if unitary disposition was required.27
Ultimately, the Eleventh Circuit affirmed the district court's decision of both parties bearing the burden of proof in regard to the receptivity factor and affirmed granting the application in part for only the two Departments that satisfied the statutory and discretionary factors.28
For around 150 years, the statute of 28 U.S.C. § 1782 has provided an avenue for seeking United States judicial assistance in obtaining domestic discovery in foreign proceedings.29 In order to grant a Section 1782 application for judicial assistance with discovery, four statutory requirements must be met; if all of the factors are met the court may grant the application.30 However, the statutory requirements are not conclusive because the court also considers four discretionary factors.31 Even if all statutory requirements are met, the court may deny the application in light of the weight of the discretionary factors.32
The statute's purpose is in the "twin aims of providing efficient assistance to participants in international litigation and encouraging foreign countries by example to provide similar assistance to our
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courts."33 Congress specifically gave the district courts the broad power to respond to international requests for assistance.34
Parallel to a Section 1782 application is the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, also known as the Hague Evidence Convention.35 The Hague Evidence Convention is a treaty signed in 1970 involving sixty-two countries in which the countries all agreed to provide evidence if needed for judicial proceedings.36 However, 28 U.S.C. § 1782 is essentially the United States' own codified version of the treaty and specifically deals only with other countries requesting evidence from the United States.37
The interpretation of 28 U.S.C. § 1782 gave rise to four requirements that the party seeking discovery must meet in order for a district court to exercise its discretion in granting a Section 1782 application:
(1) the request must be made "by a foreign or international tribunal," or by "any interested person"; (2) the request must seek evidence, whether it be the "testimony or statement" of a person or the production of "a document or other thing"; (3) the evidence must be "for use in a proceeding in a foreign or international tribunal"; and (4) the person from whom discovery is sought must reside or be found in the district of the district court ruling on the application for assistance.38
Then, in 2004, with the prominent case of Intel, the Supreme Court emphasized that just because a district court may grant a Section 1782 application if the statutory requirements are met, it is not required to do so.39 The district courts should, however, exercise their discretion with the twin aims of the statute in mind.40 With this decision, the Supreme Court solidified four additional discretionary factors that should always be given consideration when ruling on a Section 1782 discovery application:
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(1) whether "the person from whom discovery is sought is a participant in the foreign proceeding," because "the need for § 1782(a) aid generally is not as apparent as it ordinarily is when evidence is sought from a nonparticipant"; (2) "the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance"; (3) "whether the § 1782(a) request conceals an...
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