Section 1782 Discovery
Encyclopedia
Section 1782 of Title 28 of the United States Code
is a federal statute that allows a litigant (party
) to a legal proceeding outside the United States to apply to an American court
to obtain evidence
for use in the non-US proceeding. The full name of Section 1782 is "Assistance to foreign and international tribunals and to litigants before such tribunals."
The text of Section 1782(a) reads as follows:
In essence, an applicant under Section 1782 merely needs to show three things: (a) it is an "interested person" in a foreign proceeding, (b) the proceeding is before a foreign "tribunal," and (c) the person from whom evidence is sought is in the district of the court before which the application has been filed.
The type of evidence that may be obtained under Section 1782 includes both documentary evidence and testimonial evidence.
The case law concerning Section 1782 was largely clarified in 2004, when the Supreme Court of the United States issued its decision in Intel Corp. v. Advanced Micro Devices, Inc.
Intel held that (a) section 1782 discovery may be sought by any "interested person," (b) such discovery may sometimes be sought even prior to the initiation of formal proceedings outside the United States, and (c) a "tribunal" within the meaning of the section is any tribunal that acts as a "first instance decisionmaker." The Court also largely did away with any requirement of "discoverability" before the non-US tribunal.
In essence, Intel held that section 1782 discovery is available to a non-US litigant almost as freely as discovery is available in connection with a law suit that is pending entirely before a court in the United States.
Section 1782 has received great attention in recent years, following Intel.
.
In at least two respects, when a non-US litigant seeks evidence from the United States, there is an advantage in using section 1782 over the Hague Evidence Convention:
, Germany
, and other European countries. There has been an increase in recent years in applications from Middle East
ern countries.
Other than Japan
, few Asian litigants have filed section 1782 applications in recent years.
In 2010, Chevron Corporation
filed several section 1782 applications to obtain evidence in connection with the defense of product liability claims brought against it in the Republic of Ecuador.
Many observers believe that cost considerations have been one of the reasons that Section 1782 has not been used more extensively.
The United States Chamber of Commerce
has expressed concerns as to the burden upon American businesses in having to comply with orders to produce evidence under Section 1782. That concern was echoed by Justice Stephen Breyer
in his dissent in the Supreme Court's Intel decision. Justice Breyer stated that "discovery and discovery-related judicial proceedings take time, they are expensive, and cost and delay, or threats of cost and delay, can themselves force parties to settle underlying disputes."
Most, but not all, private law firms that engage in international litigation are of the view that the availability of section 1782 discovery is good.
Writing in the International Practicum of the New York State Bar Association
(1999), Hugh L. Burns and Sharad A. Shany (both New York) have referred to section 1782 as the international litigant's discovery "weapon of choice."
In a Commentary in Mealey's International Arbitration Report, Barry Garfinkel and Timothy Nelson (both New York), discussed a decision from a federal district court in Georgia that permitted Section 1782 discovery in connection with a non-US arbitration. Entitling their Commentary "Sweet Georgia," Garfinkel and Nelson called the Georgian decision "ground breaking." Writing in the New York Law Journal
in May 2007, Eric Schwartz and Alan Howard (both New York) commented on that same decision from Georgia but expressed a critical view both of the case and of the apparent trend that it represents. Schwartz and Howard predicted that the pro-discovery ruling from Georgia could result in "the doors of the U.S. federal courts [swinging] open to a flood of future applications for the discovery of evidence against U.S. businesses for use in international arbitration proceedings." (Emphasis added). Schwartz and Howard further asserted that such possibility should be "cause for alarm" for the U.S. business community.
Writing in the International Litigation Quarterly (of the American Bar Association
) in March 2008, Eric Sherby (Israel) rejected the contention that section 1782 imposes too much of a burden on Corporate America. Focusing on five cases from the mid-1990s through 2006, Sherby argued that the availability of Section 1782 discovery makes it more likely that an American court will grant a forum non conveniens
(inconvenient forum) dismissal in many law suits brought against American defendants. As a result, Sherby further argued, Section 1782 is a blessing in disguise for those American companies that are engaged in international commerce yet do not want to be sued in American courts in connection with those activities.
Writing in a newsletter of the ABA's Committee on Pretrial Practice & Discovery, Jonathan I. Handler and Erica Tennyson have observed that Section 1782 "may lead to nonreciprocal access to discovery and may even allow private litigants to exploit the statute to obtain information about a competitor and force an adversary to settle the underlying dispute." At the same time, Handler and Tennyson note that these "potential inequities" can be offset by a district court’s broad discretion in deciding whether and to what extent to grant Section 1782 requests.
The section 1782 litigation that has received the most attention has involved Chevron Corporation, which brought several section 1782 motions in various courts throughout the United States in connection with a massive tort claim against Chevron in Ecuador.
The case law so far is split as to whether a section 1782 order may compel a person located in the United States to produce documents that are located outside the US.
Some authorities are of the view that Section 1782 authorizes non-parties to produce documents and to give oral testimony but not to answer written interrogatories
. At least one recent case, however, did require a non-party to answer interrogatories.
In August 2008, a court in New York held that a German tax authority is a "tribunal" for purposes of Section 1782 discovery.
Title 28 of the United States Code
Title 28 is the portion of the United States Code that governs the federal judicial system.It is divided into six parts:* Part I: Organization of Courts* Part II: Department of Justice...
is a federal statute that allows a litigant (party
Party (law)
A party is a person or group of persons that compose a single entity which can be identified as one for the purposes of the law. Parties include: plaintiff , defendant , petitioner , respondent , cross-complainant A party is a person or group of persons that compose a single entity which can be...
) to a legal proceeding outside the United States to apply to an American court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
to obtain evidence
Evidence
Evidence in its broadest sense includes everything that is used to determine or demonstrate the truth of an assertion. Giving or procuring evidence is the process of using those things that are either presumed to be true, or were themselves proven via evidence, to demonstrate an assertion's truth...
for use in the non-US proceeding. The full name of Section 1782 is "Assistance to foreign and international tribunals and to litigants before such tribunals."
The text of Section 1782(a) reads as follows:
The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatoryLetter RogatoryA letter rogatory or letter of request is a formal request from a court to a foreign court for some type of judicial assistance. The most common remedies sought by letters rogatory are service of process and taking of evidence.-Service of process:...
issued, or request made, by a foreign or international tribunal or upon the application of any interested person . . . . The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil ProcedureFederal Rules of Civil ProcedureThe Federal Rules of Civil Procedure govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has 7 months to veto the rules promulgated or they become part of the...
.
In essence, an applicant under Section 1782 merely needs to show three things: (a) it is an "interested person" in a foreign proceeding, (b) the proceeding is before a foreign "tribunal," and (c) the person from whom evidence is sought is in the district of the court before which the application has been filed.
The type of evidence that may be obtained under Section 1782 includes both documentary evidence and testimonial evidence.
The Intel Decision
For many years, district courts and appellate courts disagreed as to (a) the scope of permitted discovery (evidence-taking) under Section 1782, (b) who may request section 1782 discovery, (c) at what stage of a non-US proceeding a section 1782 order may be granted, (d) the meaning of the statute's term "tribunal," and (d) whether an applicant under section 1782 needs to show that the requested evidence would be "discoverable" in the foreign jurisdiction.The case law concerning Section 1782 was largely clarified in 2004, when the Supreme Court of the United States issued its decision in Intel Corp. v. Advanced Micro Devices, Inc.
Intel Corp. v. Advanced Micro Devices, Inc.
Intel Corp. v. Advanced Micro Devices, Inc., , is a decision by the Supreme Court of the United States involving , which authorizes United States district courts to enforce discovery requests made in connection with litigation being conducted in foreign tribunals...
Intel held that (a) section 1782 discovery may be sought by any "interested person," (b) such discovery may sometimes be sought even prior to the initiation of formal proceedings outside the United States, and (c) a "tribunal" within the meaning of the section is any tribunal that acts as a "first instance decisionmaker." The Court also largely did away with any requirement of "discoverability" before the non-US tribunal.
In essence, Intel held that section 1782 discovery is available to a non-US litigant almost as freely as discovery is available in connection with a law suit that is pending entirely before a court in the United States.
Section 1782 has received great attention in recent years, following Intel.
Use of Section 1782 Versus Use of the Hague Evidence Convention
The subject matter of Section 1782 – obtaining evidence in the US for use in legal proceedings outside the United States – overlaps to some extent with the subject matter of a treaty to which the US and approximately forty nations are signatories, the Hague Evidence ConventionHague Evidence Convention
The Convention on the Taking of Evidence Abroad in Civil or Commercial Matters -- more commonly referred to as the Hague Evidence Convention, is a multilateral treaty which was drafted under the auspices of the Hague Conference on Private International Law. The treaty was negotiated in 1967 and...
.
In at least two respects, when a non-US litigant seeks evidence from the United States, there is an advantage in using section 1782 over the Hague Evidence Convention:
- there is no need to have first requested the discovery from the non-US tribunal; and
- sometimes discovery can be granted even before a law suit is commenced outside the United States.
Who Has Been Filing Section 1782 Applications?
In the post-Intel era, most applications under section 1782 have been filed by companies from EnglandEngland
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
, Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
, and other European countries. There has been an increase in recent years in applications from Middle East
Middle East
The Middle East is a region that encompasses Western Asia and Northern Africa. It is often used as a synonym for Near East, in opposition to Far East...
ern countries.
Other than Japan
Japan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
, few Asian litigants have filed section 1782 applications in recent years.
In 2010, Chevron Corporation
Chevron Corporation
Chevron Corporation is an American multinational energy corporation headquartered in San Ramon, California, United States and active in more than 180 countries. It is engaged in every aspect of the oil, gas, and geothermal energy industries, including exploration and production; refining,...
filed several section 1782 applications to obtain evidence in connection with the defense of product liability claims brought against it in the Republic of Ecuador.
Many observers believe that cost considerations have been one of the reasons that Section 1782 has not been used more extensively.
Controversy Regarding Section 1782 Discovery
Not all American lawyers or businesspeople believe that section 1782 discovery is a good thing.The United States Chamber of Commerce
United States Chamber of Commerce
The United States Chamber of Commerce is an American lobbying group representing the interests of many businesses and trade associations. It is not an agency of the United States government....
has expressed concerns as to the burden upon American businesses in having to comply with orders to produce evidence under Section 1782. That concern was echoed by Justice Stephen Breyer
Stephen Breyer
Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court....
in his dissent in the Supreme Court's Intel decision. Justice Breyer stated that "discovery and discovery-related judicial proceedings take time, they are expensive, and cost and delay, or threats of cost and delay, can themselves force parties to settle underlying disputes."
Most, but not all, private law firms that engage in international litigation are of the view that the availability of section 1782 discovery is good.
Writing in the International Practicum of the New York State Bar Association
New York State Bar Association
The New York State Bar Association , with 77,000 members, is the largest voluntary bar association in the United States.-History:The State Bar was founded with a constitution that dates to 1877...
(1999), Hugh L. Burns and Sharad A. Shany (both New York) have referred to section 1782 as the international litigant's discovery "weapon of choice."
In a Commentary in Mealey's International Arbitration Report, Barry Garfinkel and Timothy Nelson (both New York), discussed a decision from a federal district court in Georgia that permitted Section 1782 discovery in connection with a non-US arbitration. Entitling their Commentary "Sweet Georgia," Garfinkel and Nelson called the Georgian decision "ground breaking." Writing in the New York Law Journal
New York Law Journal
The New York Law Journal, founded in 1888, is a legal periodical covering the legal profession in New York, United States. The newspaper covers legal news, decisions, court calendars, and legislation, and provides analysis and insight in columns written by leading professionals...
in May 2007, Eric Schwartz and Alan Howard (both New York) commented on that same decision from Georgia but expressed a critical view both of the case and of the apparent trend that it represents. Schwartz and Howard predicted that the pro-discovery ruling from Georgia could result in "the doors of the U.S. federal courts [swinging] open to a flood of future applications for the discovery of evidence against U.S. businesses for use in international arbitration proceedings." (Emphasis added). Schwartz and Howard further asserted that such possibility should be "cause for alarm" for the U.S. business community.
Writing in the International Litigation Quarterly (of the American Bar Association
American Bar Association
The American Bar Association , founded August 21, 1878, is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation...
) in March 2008, Eric Sherby (Israel) rejected the contention that section 1782 imposes too much of a burden on Corporate America. Focusing on five cases from the mid-1990s through 2006, Sherby argued that the availability of Section 1782 discovery makes it more likely that an American court will grant a forum non conveniens
Forum non conveniens
Forum non conveniens is a common law legal doctrine whereby courts may refuse to take jurisdiction over matters where there is a more appropriate forum available to the parties...
(inconvenient forum) dismissal in many law suits brought against American defendants. As a result, Sherby further argued, Section 1782 is a blessing in disguise for those American companies that are engaged in international commerce yet do not want to be sued in American courts in connection with those activities.
Writing in a newsletter of the ABA's Committee on Pretrial Practice & Discovery, Jonathan I. Handler and Erica Tennyson have observed that Section 1782 "may lead to nonreciprocal access to discovery and may even allow private litigants to exploit the statute to obtain information about a competitor and force an adversary to settle the underlying dispute." At the same time, Handler and Tennyson note that these "potential inequities" can be offset by a district court’s broad discretion in deciding whether and to what extent to grant Section 1782 requests.
The section 1782 litigation that has received the most attention has involved Chevron Corporation, which brought several section 1782 motions in various courts throughout the United States in connection with a massive tort claim against Chevron in Ecuador.
Remaining Areas of Uncertainty Concerning Section 1782
Although federal district courts held in 2006, 2007, and 2008 that section 1782 discovery is available in connection with non-US arbitrations, the issue has yet to be decided by any appellate court, and it is possible that an appellate court might be persuaded by pre-Intel appellate decisions that rejected the view that Section 1782 discovery is available in connection with non-US arbitrations.The case law so far is split as to whether a section 1782 order may compel a person located in the United States to produce documents that are located outside the US.
Some authorities are of the view that Section 1782 authorizes non-parties to produce documents and to give oral testimony but not to answer written interrogatories
Interrogatories
In law, interrogatories are a formal set of written questions propounded by one litigant and required to be answered by an adversary, in order to clarify matters of fact and help to determine in advance what facts will be presented at any trial in the case.In civil cases, the issues to be decided...
. At least one recent case, however, did require a non-party to answer interrogatories.
In August 2008, a court in New York held that a German tax authority is a "tribunal" for purposes of Section 1782 discovery.