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Table of Contents

Foreword

Introduction

Biographies

CHAPTER 1     The History of 28 U.S.C. Section 1782

CHAPTER 2     Comparing Section 1782 with Other Cross-Border Discovery Methods—Letters Rogatory, Diplomatic/Consular Channels and Other Avenues

CHAPTER 3     Section 1782’s “For Use” Statutory Requirement

CHAPTER 4     What Are Section 1782 Foreign or International Tribunals Outside the Arbitral Setting?

CHAPTER 5     Found in the District: Statutory Requirement Rooted in Personal Jurisdiction

CHAPTER 6     Possession and Control under the Federal Rules of Civil Procedure

CHAPTER 7     Discretionary Factors under Intel

CHAPTER 8     Use of Section 1782 in Aid of Arbitration

CHAPTER 9     Application of the Federal Rules of Civil Procedure to Section 1782 Discovery

APPENDIX A   28 U.S.C. § 1782 Assistance to Foreign and International Tribunals and to Litigants Before Such Tribunals

APPENDIX B   Intel Corp. v. Advanced Micro Devices, Inc.

Index

EDITORS

Edward M. Mullins is a Partner in the Miami office of Reed Smith. Throughout his distinguished career, Ed has represented clients in their most challenging commercial litigation and arbitration matters. He is Florida Bar Board Certified for International Arbitration and Litigation for which he served as inaugural chair of the certification committee. He was a member consultant for the American Law Institute Restatement of the US Law of International Commercial and Investor- State Arbitration. His experience includes handling disputes involving various issues addressing distribution agreements, joint venture agreements, and energy and construction disputes, as well as investor-state arbitral disputes. He has worked extensively with clients in Section 1782 applications for discovery in the aid of foreign proceedings including at the trial and federal levels. In addition, Ed is a member of the Executive Committee of the ABA Section of International Law and is a fellow of the Chartered Institute of Arbitrators.

Lawrence W. Newman received his initial courtroom experience in his five years as an Assistant United States Attorney in the Office of the United States Attorney for the Southern District of New York, after which he joined the litigation department of the New York office of Baker & McKenzie. That department, under his direction, focused on international litigation and arbitration and became the leading law office in the world (in terms of number of cases) in the representation of claimants against Iran in arbitration at the Iran-United States Claims Tribunal in The Hague. Mr. Newman has represented claimants and respondents in commercial and investment arbitration proceedings in the United States, Europe and Latin America. He also sits as an arbitrator in cases involving international matters. Mr. Newman is the editor, co-editor and co-author of several books on international litigation and arbitration, including Enforcement of Foreign Judgments (three volumes), Attachment of Assets (two volumes), Litigating International Commercial Disputes, Checklists of International Arbitration (three editions), The Leading Arbitrators’ Guide to International Arbitration (three editions), Interim Measures in International Arbitration and Soft Law in International Arbitration and was co-editor of the first edition of this book. Since 1982, he has been co-author of the “International Litigation” column in the New York Law Journal. Mr. Newman was Chairman for four years of the International Disputes Committee of the New York City Bar, and thereafter the Chairman of the Arbitration Committee of the International Institute for Conflict Prevention and Resolution (CPR) and is a member of the Advisory Committee of the Restatement of International Arbitration of the American Law Institute. Mr. Newman is a Fellow of the College of Commercial Arbitrators and a Fellow of the Chartered Institute of Arbitrators, where he is a member of its Practice and Standards Committee and Chairman of its Arbitration Subcommittee. He was an Adjunct Associate Professor at Fordham Law School, teaching a course on International Arbitration. He has been, since 2000, the Chairman of the International Arbitration Club of New York. Mr. Newman is a frequent speaker on international arbitration and litigation and is the co-founder of the Leading Arbitrators’ Symposia on the Conduct of International Arbitration, which have been held annually for the past years in Vienna, and of the “Take the Witness” seminars on cross-examination in international arbitration, which have been held in in Paris, New York, Vienna and Venice. Mr. Newman has been listed as a highly-rated lawyer in various national and international directories of lawyers and is listed in numerous editions of Who’s Who. He is a graduate of Harvard College and Harvard Law School.

CONTRIBUTORS

Lauren W. Brazier Lauren W. Brazier is an Associate at Simpson Thacher & Bartlett LLP, based in the London Office.  She is dual-qualified in New Zealand and New York.  Her practice focuses on international arbitration and litigation.  Ms. Brazier holds an LLM from Harvard Law School, which she attended as a Frank Knox Fellow and an LLB (First Class Honours) and BA from Victoria University of Wellington, where she received the Victoria University of Wellington Medal for Academic Excellence for graduating top of her law school class.

R. Matthew Burke is an associate at Chaffetz Lindsey LLP where he represents corporate clients in litigation in state and federal courts and in international and domestic arbitrations.  He received his Juris Doctor from Columbia Law School, where he was a James Kent Scholar, and where he served as a Managing Editor on the Columbia Law Review.

David R. Cohen is the Practice Group Leader of Reed Smith’s 90-lawyer Records & E-Discovery Practice Group. He has 35 years of commercial litigation experience in a variety of subject matters, serves as national or special e-discovery counsel for several companies, has been appointed as a Discovery Special Master in multiple cases, and also counsels clients on information governance and litigation readiness issues. David has been active in The Sedona Conference working groups 1 and 6, serves on the Advisory Committee of the Georgetown Advanced E-Discovery Institute, and co-chairs the EDRM GDPR Committee. A graduate of Harvard Law School, he is a frequent author and presenter on issues relating to e-discovery, legal technology, and litigation tactics. A Chambers USA and Chambers Global ranked attorney in e-discovery, David also has been recognized by Super Lawyers and Who’s Who Legal.

Annette C. Escobar, Partner at ACE Law, P.A., a Certified Financial Crime Specialist and Certified by the Florida Bar in International Litigation and Arbitration, focuses her practice on international commercial litigation, international insolvency, International and Domestic commercial litigation and appellate practice, as well as fraud and asset recovery. Annette advises and has extensive experience representing international corporations and individual clients, including receivers, trustees, and others, in cases pending before state and federal, and appellate courts in the U.S. She also has experience in representing individuals and corporate entities in complex international business and government disputes arising from Latin America, the Caribbean and European operations, as well as enforcement of foreign judgments.

Kristina Fridman is a litigation associate at Baker & McKenzie. She graduated from Columbia Law School in 2017, where she received the Parker School Certificate for her studies in foreign and comparative law, and from American University in 2011, magna cum laude, with a B.A. in Political Science and minor in Russian Language. Kristina has experience representing clients involved in commercial arbitration under the ICC, JAMS, and AAA rules, investment arbitration under UNCITRAL and ICSID rules, and in complex commercial litigation in New York courts.

Nancy E. Hart is a New York partner at Gibson, Dunn & Crutcher LLP.  A graduate of Vassar College and Boston College Law School, her practice focuses on representing institutional and individual clients in a variety of high-profile litigation matters, including law firm defense, complex contract disputes, corporate control contests, and securities issues in domestic and international arbitrations, as well as in state and federal courts, at both the trial and appellate level. Ms. Hart has litigated numerous Section 1782 discovery matters throughout the United States.  She also serves as a member of the Professional Responsibility Committee of the New York City Bar Association.

Arnoldo B. Lacayo is a shareholder with Sequor Law, a Miami-based boutique.  Arnie focuses his international litigation practice on financial fraud, asset recovery and cross-border insolvency.  He has experience litigating complex disputes in both state and federal courts and has represented multi-national corporations, sovereign governments, liquidators, receivers, and other foreign officeholders in matters pending in U.S. Courts.  Arnie regularly supervises transnational investigations and has instructed counsel in dozens of jurisdictions.  Lacayo also has extensive experience working with the versatile 28 U.S.C. § 1782 discovery statute and Chapter 15 of the U.S. Bankruptcy Code. Arnie is an active member of the Florida Bar’s International Law Section where he recently concluded his year as Chair of the one-thousand member-plus organization and where he continues to serve as a member of the Executive Council.  Arnie is also active with the International Association of Young Lawyers (AIJA) where he currently serves as President of the Litigation Commission.

Gregory A. Litt represents companies and individuals in high-stakes international litigation and arbitration in a wide range of industries around the globe, including accounting, biotechnology and life sciences, banking and finance, construction, hospitality, insurance, media, oil and gas, technology and telecommunications. He was a key member of the Skadden team that obtained and collected a $1.2 billion LCIA arbitration award for Japanese mobile telecommunications company NTT Docomo in their contract and regulatory dispute with Tata Sons of India, a victory that was named Global Dispute of the Year for Commercial Arbitration in Asia by The American Lawyer in 2017. He also is active in high-profile international sports disputes before sports federations and the Court of Arbitration for Sport.  Mr. Litt frequently represents client on all sides of 1782 applications and other international discovery disputes.

Bruce S. Marks is the founder and managing member of Marks & Sokolov LLC, which has maintained offices in Philadelphia, PA and Moscow, Russian Federation since 1998.  Since 1984, Mr. Marks has represented Western, Russian, and Ukrainian clients in commercial, professional malpractice, lender liability, securities fraud, maritime, and RICO litigation matters.  Through his extensive international practice, he has litigated Section 1782 cases throughout the United States, including Alabama, Delaware, Florida, New York, Ohio, and Pennsylvania.  A former Pennsylvania state Senator, Mr. Marks also served as counsel to U.S. Senator Arlen Specter (R-PA) from 1985 to 1989.  He received his B.A. and B.S., cum laude, in 1979 and J.D. in 1984 from the University of Pennsylvania, in addition to an L.L.M. in 1984 from the University of Cambridge (Clare College).  He appears regularly as a legal expert on CNN, FOX, MSNBC, and Russian television channels.  He is an avid squash player.

Rima Y. Mullins received her law degree from the University of Florida, Levin College of Law, where she graduated with high honors and was Senior Research Editor of the Florida Law Review, and her undergraduate degree in Biology from Brown University. Prior to joining the faculty at Florida International University College of Law as an Assistant Professor of Legal Skills and Values, Professor Mullins had was in private practice, where she focused on complex civil litigation, including class actions, complex business disputes, and international torts, at both the trial and appellate levels. She also served as a career federal law clerk for the Honorable Chris M. McAliley. Professor Mullins has spoken at several seminars on various issue of international law and is actively involved in the International Law Section of the Florida Bar.

Timothy G. Nelson a New York partner of Skadden, Arps, Slate, Meagher & Flom LLP, represents clients from a range of sectors, including oil and gas (upstream, midstream), nuclear, solar, mining, cement, finance, insurance, pharmaceuticals, telecommunications, retail, sports, motor racing, hotels and property investment, plus sovereign entities, before ICSID, ICDR, AAA, ICC, LCIA, SIAC, HKIAC and UNCITRAL arbitration tribunals, as well as U.S. federal and state courts. He handles corporate/commercial disputes as well as investment treaty/expropriation claims involving foreign governments. He has litigated cases involving the New York and Panama Conventions, the Hague Service and Evidence Conventions, the Foreign Sovereign Immunities Act and "Section 1782" (the cross-border discovery statute). He is widely published and quoted on matters of international law, cross-border dispute and international arbitration, is the co-editor of Take the Witness: Cross-Examination in International Arbitration and a co-founder of the Journal of Enforcement of Arbitration Awards.  Among the numerous legal issues in which he has case experience, and has commented publicly, are damages and quantum issues in business disputes, space law (including satellite and spectrum rights), the status of "soft law" or lex mercatoria instruments such as the UNIDROIT Principles on International Commercial Contracts, the law of diplomatic immunity and international organizations, and the evidentiary issues associated with covert wiretapping and "leaked" government files (particularly in an international law and arbitration setting).

Andrea E. Neuman is a partner in the New York office of Gibson, Dunn & Crutcher LLP and admitted to practice in both New York and California. Ms. Neuman Co-Chairs Gibson Dunn’s Transnational Litigation Practice Group and is a member of the firm’s International Arbitration, Environmental Litigation and Mass Tort, Class Action and Appellate Practice Groups.

Tyler B. Robinson Tyler B. Robinson is a Partner of Simpson Thacher & Bartlett LLP, based in the London office.  He is dual qualified in New York and English law and focuses his practice on high-stakes, international commercial disputes and international arbitrations conducted in venues throughout the world. His clients have included leading multinational companies in the investment, pharmaceutical, food and beverage, energy, telecommunications and defense industries.  Mr. Robinson is recognized in The Legal 500 as “a master at collating highly complex and technical elements cohesively” and was named a National Law Journal “ADR Champion” in 2017.  He is a Member of the IBA Arbitration Guidelines and Rules Subcommittee 2019/2020 Task Force for the revision of the 2010 IBA Rules on the Taking of Evidence in International Arbitration and has published a number of academic journal articles on topics relating to international arbitration, including section 1782.

Joseph B. Rome was formerly an Associate at Kobre & Kim LLP in the Miami office. Joe is currently an Assistant State Attorney at the Miami-Dade State Attorney’s Office.

Leif T. Simonson is a Principal at Kobre & Kim LLP and practices in its New York office. Leif represents individual and corporate clients in high-stakes disputes, often involving significant cross-border elements. With extensive experience in both civil and criminal matters involving a variety of complex financial products and services, Mr. Simonson is increasingly called upon to assist clients in claim monetization and asset recovery projects (including monetizing large money judgments and arbitration awards) on a multijurisdictional basis. Before joining Kobre & Kim, Mr. Simonson practiced with Cravath Swaine & Moore LLP and Faegre Baker Daniels LLP.

Robert H. Smit is an independent arbitrator in international commercial and investment treaty arbitrations seated around the world.  Mr. Smit is an Adjunct Professor of Law at Columbia Law School, where he teaches courses and seminars on international arbitration and transnational litigation. He a retired Litigation Partner at Simpson Thacher & Bartlett LLP, where he Co-Chaired the Firm’s International Arbitration and Dispute Resolution Practice.  Mr. Smit is also Co-Editor-in-Chief of the American Review of International Arbitration; Member of the ICC Commission on Arbitration; and Adviser to the American Law Institute’s Restatement (Third) of the U.S. Law of International Arbitration.  He is also former U.S. Member of the ICC International Court of Arbitration; Chair of the New York City Bar Association’s International Commercial Disputes Committee; Chair of the CPR Arbitration Committee; and Vice-Chair of the IBA’s International Arbitration and ADR Committee.

Thomas C. Sullivan is a senior attorney in the Philadelphia office of Marks & Sokolov LLC. Mr. Sullivan represents Western, Russian and Ukrainian clients in complex commercial disputes including civil RICO, securities fraud, Foreign Corrupt Practices Act, Convention on the International Sale of Goods and ICC Arbitration matters. He has litigated numerous Section 1782 discovery matters throughout the United States and written extensively on this topic. He received his B.S. from The Ohio State University and J.D. from Widener University. Mr. Sullivan enjoys traveling, skiing, alpine hiking and spending time with his family.

Raul Torrao, an associate at Sequor Law, P.A., focuses his international litigation practice on asset recovery and cross-border insolvency. He represents individuals, corporations, governments, and trustees in domestic and international judgment collection matters; in litigation to recover assets that were concealed, fraudulently transferred, or otherwise misappropriated; in actions to collect evidence for use in foreign proceedings under 28 U.S.C. § 1782; and in other commercial disputes. Raul is admitted to practice both in Florida and in Brazil.

Bradley C. Whitecap is a part of Reed Smith’s Records and E-Discovery group with 10 years of experience since graduating from the University of Pittsburgh School of Law. He has supervised a variety of projects covering a wide range of subjects, including regulatory investigations, product liability litigation, settlement preparation, and records management. Bradley has also co-authored and presented on a variety of topics dealing with e-discovery and legal technology.

David Zaslowsky chairs the Litigation Department of Baker McKenzie's New York office, and practices in the area of general commercial litigation and arbitration. He is the editor of the Firm's blockchain blog and co-editor of the Firm's International Litigation & Arbitration Newsletter. David has a degree in computer science and has worked on numerous technical-related disputes. He has also worked on many cases involving issues of international litigation, including matters related to the Foreign Sovereign Immunities Act, enforcement of foreign judgments and arbitral awards, the Alien Tort Claims Act, forum non conveniens, obtaining discovery in aid of foreign proceedings under 28 U.S.C. Section 1782, and foreign attachments. David has been included for a number of years in the Chambers USA Guide and Chambers Global Guide for his expertise in International Arbitration. He also serves as an arbitrator and is on the panel of international arbitrators of the International Centre for Dispute Resolution and of the AAA. David is a graduate of Yale Law School.

“This is an essential work for anyone practising international litigation or arbitration in the United States (and elsewhere).  Its contributions are timely, thoughtful and eminently practical.” Gary Born, Partner, WilmerHale

 “Section 1782 is a critical tool for cross-border dispute resolution practitioners, regardless of the dispute venue. This book is an indispensable instruction manual on how to effectively use that tool or deal with its intricacies when it is used against you.” Glenn P. Hendrix, Arnall Golden Gregory LLP

“This is an insightful and extremely useful analysis of the key issues in Section 1782 proceedings. Invaluable.” Gregory P. Joseph, Joseph Hage Aaronson LLC, Past President, American College of Trial Lawyers

“Parties to European arbitrations and court proceedings are not overly familiar with Section 1782 under 28 U.S.C. However, it should be on their radar if they need to seek discovery, or indeed resist it, where evidence is located in the U.S. If so, this invaluable publication should be kept close at hand.” David Parratt QC (Scot), FCIArb, 3PB Barristers

“Section 1782 has grown in recent years to play an important role in U.S. discovery for international judicial and arbitral proceedings. The authors of this book present an excellent discussion of both the case law and the practical application of Section 1782. The book is a must-have resource for all international litigation and arbitration practitioners both within and outside the United States.” Edna Sussman, SussmanADR LLC, Chair, New York International Arbitration Centre