U.S. Evidence for Foreign Tribunals - Part 7 Chapter 7 -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.
Although they might find the concept startling at first, litigants in foreign tribunals and their lawyers are likely to become increasingly interested in the opportunity afforded to them of using United States law to pursue evidence in the United States in ways that are normally not available in their own countries. Under section 1782 of Title 28, United States Code, such evidence-gathering, limited in scope only by Part V of the Federal Rules of Civil Procedure (Rules 26 through 37), is available from any third party, and even from an adversary in the foreign tribunal, as long as the person from whom evidence is sought “resides or is found” in the United States. Moreover, the foreign litigant may obtain such discovery in the United States without first obtaining the assistance, or even the permission, of the foreign tribunal.
Recent decisions, notably by the United States Court of Appeals for the Second Circuit, have rejected most of the judicially created drags on the use of section 1782, leaving many district courts with little basis for denying an application that satisfies the statute’s liberal requirements. The consequence could be the expansive, almost routine, use of United States evidence-gathering processes by litigants in foreign cases involving either United States parties or transactions with links to the United States. As identified by the Second Circuit, the statutory requirements for discovery under section 1782 are the following:
(1) the person from whom discovery is sought must reside or be found in the district of the district;
(2) the discovery must be “for use in a proceeding in a foreign or international tribunal”; and
(3) the application must be made “by a foreign or international tribunal” or by “any interested person.”
The last element is perhaps the most revolutionary because, unlike The Hague Evidence Convention and international comity through conventional letters rogatory, it allows private litigants to obtain discovery in the United States without first procuring a letter of request or letter rogatory from the foreign tribunal.