An international litigator in U.S. courts will frequently need to obtain discovery, documents or testimony abroad, and the issues involved and avenues available in obtaining such evidence are likely to be familiar to him, and have been considered at the Supreme Court level. Perhaps less well known, however, are issues involving the reverse problem, obtaining evidence in the United States for use before foreign and international tribunals. In this chapter, we discuss section 1782 of Title 28, United States Code, the principal provision empowering federal courts to assist foreign and international tribunals and litigants. After briefly examining the history of the provision, we consider judicial decisions holding that evidence cannot be obtained under section 1782 that could not otherwise be obtained under the law or procedure of the foreign jurisdiction, perhaps the principal issue of interest to civil litigants seeking assistance under section 1782.

Section 1782, entitled “Assistance to Foreign and International 

Tribunals and to Litigants before such Tribunals,” provides:

(a) 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. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. The order may prescribe the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.

A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.

(b) This chapter does not preclude a person within the United States from voluntarily giving his testimony or statement, or producing a document or other thing, for use in a proceeding in a foreign or international tribunal before any person and in any manner acceptable to him.