Originally from Obtaining Evidence for Use in International Tribunals under § 1782, Second Edition

PREVIEW

I.     BEYOND THE STATUTORY REQUIREMENTS

A.    The Pre-Intel Foreign Discoverability Rule Split among the Circuits

Prior to Intel Corp. v. Advanced Micro Devices, Inc., there was a wide split in the circuits regarding whether discovery sought under Section 1782 must be discoverable under the laws of the foreign forum.

1.    Application of a Foreign Discoverability Rule

The First Circuit in In re Asta Medica, S.A.,  held that litigants requesting assistance under Section 1782 must show information sought in the United States would be discoverable under foreign law.  The First Circuit rejected the lower court’s conclusion that there was nothing in Section 1782’s legislative history or the academic commentary suggesting any congressional desire to impose on American courts the burden of investigating foreign law on matters such as admissibility, discoverability or the authority of foreign tribunals to order such testimony or documents in aid of their own judicial proceedings.   The First Circuit’s rationale was that an American party involved in litigation in a foreign country with limited pre-trial discovery would be at a substantial disadvantage vis-à-vis the foreign party. The foreign party could file a request for Section 1782 judicial assistance for unlimited discovery while the American party would be confined to the much more restricted discovery found in most forums outside the United States. The First Circuit concluded that Congress did not amend Section 1782 to place American litigants in a less favorable position than their opponents when litigating abroad.  Such a result would be contrary to the concept of fair play embodied in United States discovery rules and the notion that “mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.”

In addition, the First Circuit saw the district court’s holding as having another serious shortcoming in that foreign litigants might use Section 1782 to circumvent their own foreign law and procedures because the information sought under Section 1782 may not be available in the foreign jurisdiction due to either procedural restrictions or its substantive law. The First Circuit believed that in amending Section 1782, Congress did not seek to place itself on a collision course with foreign tribunals and legislatures, which have carefully chosen the procedures and laws best suited for their concepts of litigation. They illustrated that in a purely domestic litigation in a foreign jurisdiction with restrictive pre-trial discovery procedures, a litigant might request the foreign tribunal to issue an order compelling the production of information located in the foreign jurisdiction.  If such request were denied and the same information were located in the United States, the litigant could sidestep that result by seeking and obtaining the information under Section 1782. They considered that such an interpretation of Section 1782 allows foreign litigants to use United States law to gain an unfair advantage over their adversary in a purely foreign litigation and importantly, that foreign countries may be offended by the use of United States procedures to circumvent their own procedures and laws.