U.S. Discovery for Foreign Litigants - Part 3 Chapter 12 -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.
Recently, a little noticed section of the Federal Judicial Code that offers aid to foreign litigants and tribunals has come into increasing prominence, particularly in civil cases. Section 1782 of Title 28, United States Code, permits foreign and international tribunals and “any interested person” in such proceedings to have recourse to the U.S. federal courts for purposes of obtaining documents and testimony for use in those proceedings.
The present language of section 1782 dates from 1964, when the then existing letters rogatory statute was amended and liberalized to provide more “equitable and efficacious procedures for the benefit of tribunals and litigants involved in litigation with international aspects.” The legislative history made it clear that the district courts would be vested with discretion in issuing orders under section 1782. The courts may, “in proper cases . . . refuse to issue an order or may impose conditions” they deem desirable.
Courts have differed in their views as to the kinds of limitations the statute imposes on the district courts in exercising their discretion under section 1782 —particularly as to the type of evidence production or discovery that may be allowed in this country in aid of a proceeding in a foreign or international court or other tribunal. Of particular concern to courts has been the issue of discoverability of the evidence sought under the laws of the foreign country from which the request emanates.
In a 1980 district court case involving patent litigation pending in South Africa, the court, expressing concern that the party requesting relief under 1782 was an “interested party” and not a tribunal, refused to issue a section 1782 order for the production of documents and testimony from the party, an American company, in the absence of a showing that the materials sought would be available under South African law. Other courts have issued similar rulings.
The Second Circuit, however, in two decisions in 1992 and 1993,7 has taken a different view. In the Malev case, the court held that a district court had abused its discretion under section 1782 when it denied discovery to a party because a request from the other party had not first been made to the foreign (in this case Hungarian) court and when it based its denial of 1782 relief on the absence of a request for relief from the Hungarian court.8 The court stated that such a requirement would read the “interested person” element out of the statute, leaving only applications that were made by courts or tribunals or were approved by them as cognizable under it.