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

PREVIEW

I.     INTRODUCTION

Pursuant to 28 U.S.C. 1782, a court is authorized to order the deposition of or production of documents from the targeted person or entity. As the statute mandates, to the extent that the issuing court does not otherwise prescribe a specific practice and procedure, “the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.”  Courts have interpreted this reference as “suggest[ing] that under ordinary circumstances the standards for discovery under those rules should also apply when discovery is sought under the [Section 1782] statute.”

As the Seventh Circuit noted, “Discovery in the federal court system is broader than in most (maybe all) foreign countries, and it may seem odd that Congress would have wanted foreign litigants to be able to take advantage of our generous discovery provisions. The stated reason was by setting an example to encourage foreign countries to enlarge discovery rights in their own legal systems.” 

But despite these expansive rights, the same limitations that apply to discovery under the Federal Rules also dictate what discovery will be permitted under Section 1782. As explained by the Supreme Court in Intel, courts may deny an application for discovery pursuant to Section 1782 to the extent the discovery requests are “unduly intrusive or burdensome.”  In particular, courts have been guided by Rules 26 and 45, which govern third-party discovery, in assessing discovery sought pursuant to Section 1782.

This chapter will examine the application of the Federal Rules of Civil Procedure to Section 1782 discovery. It will then provide a brief overview of the type of discovery that can be obtained, limitations on the scope of such discovery, and potential avenues to challenge or modify the sought discovery.