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

PREVIEW

I.     OVERVIEW

Section 1782 authorizes a district court to order discovery for use in a foreign proceeding when certain statutory requirements are met. Although formulated slightly differently among the circuit courts, the statutory requirements generally include:

•   the person from whom discovery is sought must reside or be found in the district of the district court to which the application is made;

•   the discovery must be “for use in a proceeding before a foreign or international tribunal, including criminal investigations conducted before formal accusation”; and

•   the request must be made by a “foreign or international tribunal” or “any interested person.”

Once the statutory requirements are met, a district court is authorized, but is not required, to grant discovery.  In Intel Corp. v. Advanced Micro Devices, Inc., the U.S. Supreme Court identified certain factors that “bear consideration” by a district court when exercising its discretion to grant a Section 1782 request. These factors are (1) whether ‘‘the person from whom discovery is sought is a participant in the foreign proceeding”; (2) “the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance”; (3) “whether the § 1782(a) request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States”; and (4) whether the request is “unduly intrusive or burdensome”.

This chapter examines the statutory requirement that the proposed discovery be “for use in a proceeding before a foreign or international tribunal.” The requirement has raised a number of interpretative questions that the courts have addressed and, to a varying degree, resolved.