28 U.S.C. § 1782: A Powerful Tool In Global Disputes

As the number and complexity of cross-border and multi-jurisdictional disputes increase, companies can use 28 U.S.C. § 1782 to obtain evidence from U.S.-based entities for use in those foreign proceedings. Specifically, § 1782 allows entities "interested in" a foreign proceeding to obtain discovery from a U.S. entity using the United States District Courts. It permits the District Court in the district in which an entity resides to direct that entity to produce documents or give testimony. Originally enacted by Congress to provide assistance to foreign tribunals, § 1782 is also a powerful tool for obtaining documents and testimony relevant to the foreign proceeding that is otherwise outside the jurisdiction of the foreign tribunal. See Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004); Lo Ka Chun v. Lo To, 858 F.2d 1564 (11th Cir.1988). Section 1782 may be of particular interest in intellectual property disputes, since these often have the cross-border aspects that bring this statute into play.

To take advantage of § 1782, the party seeking discovery need only show that: (1) the request has been made either "by a foreign or international tribunal," or by "any interested person"; (2) that the request seeks evidence, whether an individual's "testimony or statement" or the production of "a document or other thing"; (3) that the evidence is "for use in a proceeding in a foreign or international tribunal"; and (4) the person from whom discovery is sought resides or is found in the district of the United States District Court ruling on the application for assistance.

Though powerful, § 1782 is not limitless. The law is not settled on whether § 1782 can reach documents within a U.S. target's "possession, custody, or control" if those documents or things are physically located overseas. On the one hand, U.S. courts have noted in dicta that § 1782 only reaches documents located inside the United States. See, e.g., Four Pillars Enters. Co. v. Avery Dennison Corp., 308 F.3d 1075, 1079 (9th Cir. 2002) (suggesting there is "some support" for the view that § 1782 does not authorize discovery of material located in foreign countries, resolving on other grounds); Norex Petroleum Ltd. v. Chubb Ins. Co. of Canada, 384 F. Supp. 2d 45, 55 (D.D.C. 2005) (finding that the available "caselaw suggests that §1782 is not properly used to seek documents held outside the United States" but finding documents in question "are not discoverable for another reason").

On the other hand, other courts have reached a contrary conclusion: the plain language of the statute poses no such restriction and "requires only that the party from whom discovery is sought be 'found' here; not that the documents be found here." See In re Gemeinshcaftspraxis Dr. Med. Schottdorf, No. Civ. M19-88 (BSJ), 2006 WL 3844464 (S.D.N.Y. Dec. 28, 2006) (emphasis in original). In that case, the court ordered production of the documents sought under § 1782, including those in the control of the U.S.-based entity but located abroad. See also In re Application of Republic of Kazakhstan, 15 Misc. 0081 (SHS) (S.D.N.Y. June...