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

PREVIEW

I.     INTRODUCTION

Section 1782 of Title 28 of the United States Code provides American federal courts with wide-ranging powers to assist in obtaining evidence for use in foreign and international proceedings.  Enacted with the “twin aims” of “providing efficient assistance to participants in international litigation and encouraging foreign countries by example to provide similar assistance” to American courts, Section 1782 adopts a deliberately liberal approach to international judicial assistance in evidence-gathering, shedding many of the limitations of prior statutory provisions relating to judicial assistance. It reflects the United States’ view of its role in the international litigation community: that of a willing assistant to foreign tribunals and parties and of a role model for other nations, leading by example in making its assistance available to other nations and international tribunals without requiring reciprocity as a pre-condition.

This was not always the case. As noted by the Supreme Court in its first decision on Section 1782, Intel Corporation v Advanced Micro Devices, Inc, “Section 1782 is the product of congressional efforts, over the span of nearly 150 years, to provide federal court assistance in gathering evidence for use in foreign tribunals.”  Indeed, there were a number of predecessor sections to Section 1782, spanning from 1855 onwards. The predecessor legislation developed in a piecemeal and limited fashion, often out of necessity in response to specific incidents, rather than as a result of any overarching vision. As the Supreme Court observed in its recent decision on Section 1782, ZF Automotive US, Inc v Luxshare, Ltd, at more than one point in the history of American judicial assistance, parallel strands of legislation targeting similar issues developed separately.  And, unlike the subsequent legislation which sought to be at the “forefront of nations,”  the assistance offered by Section 1782’s predecessors was narrower, subject to many more conditions on assistance, such that for many years American courts demonstrated an attitude of hostility and reluctance when asked to provide assistance to proceedings with an international element.