Originally from Obtaining Evidence for Use in International Tribunals under 28 U.S.C. Section 1782, Second Edition

PREVIEW

In this chapter, we compare Section 1782 with other methods of obtaining cross-border discovery in aid of foreign litigation.  Consideration of other discovery methods is important to understanding Section 1782’s leading position in the overall scheme of obtaining discovery in the United States for use in foreign proceedings.  To make the study, one need not go far outside the statutory “neighborhood” because the two adjacent statutory provisions, 28 U.S.C. §§ 1781 and 1783, provide a basis for comparison.

The first of these provisions, 28 U.S.C. § 1781, governs the transmission of “letters rogatory,” either inbound—from “a foreign or international tribunal” to the United States Department of State—or outbound, from “a tribunal in the United States” to a “foreign or international tribunal.”  Among other things, this gives effect to existing treaty mechanisms (such as the 1970 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters) that enable foreign litigants to seek evidence using the powers of United States courts.  But these procedures are by no means Section 1782’s equal.

Meanwhile, 28 U.S.C. § 1783, gives U.S. courts a statutory power to compel the attendance in United States proceedings of a “national or resident of the United States who is in a foreign country.”  While this statute appears to allow U.S. courts to reach extraterritorially and subpoena persons in foreign jurisdictions, there is nothing in the statute that contemplates that a foreign court might subpoena persons located within the United States (much less any provision authorizing or legitimizing such a foreign subpoena).

In this overall context, the powers granted to a U.S. court under Section 1782 appear to be remarkably (indeed, uniquely) broad.