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

PREVIEW 

Section 1782 provides that: “The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal.….” 28 U.S.C. § 1782(a). This chapter specifically addresses the requirement that the party seeking discovery pursuant to § 1782 must show that the person or entity from whom discovery is sought “resides or is found in” the district.

Because the plain language of the statute does not specify the level of contacts with the forum needed for a person or entity to be “found” in the district for the purpose of applying § 1782, courts have taken different approaches to this issue. Some courts have approached this question by comparing the “found in the district” test under § 1782 with the requirements for the exercise personal jurisdiction, while others have required a showing of “systematic and continuous” business activities in the district to satisfy § 1782.  Recent developments in the law regarding the exercise of general personal jurisdiction over foreign entities have had the collateral effect of impacting the application of § 1782 to non-individuals. This chapter first summarizes the historic interpretation of requirements under § 1782’s “resides or is found in” language for both individuals and entities, then examines the recent Supreme Court developments in the standard for exercising personal jurisdiction over non-individuals, and finally discusses how these developments have impacted lower courts’ interpretation of the application of the foreign discovery statute to non-resident entities.