Discretionary Factors under Intel - Chapter 7 - Obtaining Evidence for Use in International Tribunals Under Section 1782
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 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 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 an American party involved in litigation in a foreign country with limited pre-trial discovery would be at a substantial disadvantage vis-a-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.”