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

PREVIEW

The contemporary interpretation of what qualifies—and what does not qualify—as a “foreign or international tribunal” within the meaning of 28 U.S.C. § 1782 transcends the traditional definition of “courts” encompassed within the judicial branch of foreign governments and has recently come into better focus. Building on the liberalizing interpretation of Section 1782 by the United States Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), federal courts that have grappled with this question have generally expanded the spectrum of the bodies and entities that qualify as “foreign or international tribunals” under the statute for almost two decades.  More recently, the United States Supreme Court addressed the Section 1782 “foreign or international tribunal” factor in ZF Auto. US, Inc. v. Luxshare, Ltd., 213 L. Ed. 2d 163 (2022)  and established requirements for a body to qualify as such, likely limiting the scope and applicability of the statute.

Section 1782 is not particularly lengthy.  Nevertheless, it makes reference to the words “foreign or international tribunal” twice and references the words “international tribunal” in a third instance.   The first reference to foreign or international tribunals in the statute makes reference to the statutory requirement that the evidence obtained pursuant to the statute be “for use in a proceeding in a foreign or international tribunal.”  As a preliminary matter, this oft-litigated requirement is refined in Supreme Court precedent holding that, to qualify for assistance under Section 1782, the applicant must demonstrate that the entity for which the evidence sought in the United States is being requested is a foreign or international tribunal within the meaning of the statute.