Obtaining Evidence in the United States for Foreign Tribunals - Part 3 Chapter 8 - The Practice of International Litigation - 2nd Edition
Lawrence W. Newman has been a partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of 4 works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.
A little known provision of the Federal Judicial Code on assistance to foreign courts has been interpreted in two opinions by federal circuit courts that offer two markedly different sign posts for litigators. The provision in question, section 1782 of Title 28, is the latest incarnation of a statutory provision that began life as a grant of authority to the federal district courts to comply with letters rogatory requests from foreign courts.
The first case was Malev Hungarian Airlines v. United Technologies International, decided by the Second Circuit on May 5, 1992. The second, decided by the First Circuit on December 4, 1992, was In re Application of Asta Medica, S.A. Whereas the Second Circuit took an approach to the scope of evidence-gathering permitted by section 1782 that was based on the district court’s discretion, the First Circuit purported to find in the legislative history reasons for inferring restrictions on the scope of the section.
Section 1782, about which we have written before, states that a district court “may order a person 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.” The section further provides that the district court may make its order in response to a letter rogatory or equivalent request from a foreign or international tribunal or “upon the application of any interested person.” The court “may direct” that the testimony be given or the documents be produced before a person appointed by the court.
Lastly, the court’s order “may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal,” for taking the testimony or producing the documents, and, to the extent that the order does not otherwise prescribe, “the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.” Thus, on its face, section 1782 grants broad authority to the federal district courts to assist foreign and international tribunals, as well as parties to proceedings before such tribunals, in obtaining evidence located in the United States.