Geoffrey Gauci And Andrew Waters: U.S. Discovery In Foreign Proceedings

In the United States, 28 U.S.C. § 1782 is a federal statute that allows an interested or named party to foreign proceedings to obtain potentially broad discovery, subject to the federal district court’s discretion, from a person located in a U.S. federal district. This update examines recent decisions of the U.S. courts which give guidance as to the application of Section 1782, particularly regarding its application to private arbitration proceedings.
“There is [] an immediate attraction to Section 1782 for international litigation practitioners because this procedure potentially allows an applicant access to the broad class of discovery available under U.S. procedure for use in proceedings taking place outside the U.S. Such an application is particularly appealing as it can be made directly to the U.S. court, rather than first requiring a request to be made by the foreign tribunal (i.e., via the letter of request procedure or in accordance with the Hague Convention of 1970 on the taking of evidence abroad in civil or commercial matters).

“This update examines recent decisions of the US courts which have given guidance as to, firstly, the criteria to be applied by courts in exercising their discretion to grant or refuse discovery under Section 1782 and, secondly, the application of Section 1782 to foreign arbitration proceedings.

Relevant Factors. Prior to the seminal decision in Intel Corp. v. Advanced Micro Devices, Inc.[], 159 L. Ed. 2d 355, 124 S. Ct. 2466, 2004 US LEXIS 4570 (U.S., 24 June 2004), the discretion afforded to courts by Section 1782 had frequently been exercised inconsistently, leaving applicants uncertain as to the standards which they were expected to meet in order to be granted the discovery sought.”
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