Effective Use Of Discovery Obtained Pursuant To 28 U.S.C. § 1782 In Proceedings Before The English Courts

In proceedings before the English courts, there are specific

rules of civil procedure that can be used to obtain discovery from

U.S.-based persons who are not directly involved in the litigation.

However, it is often the case that a direct application to the U.S.

courts for discovery pursuant to 28 U.S.C. § 1782 will be

quicker and will give rise to a wider scope of

disclosure.1

Party Discovery Obligations in English Proceedings

All parties to civil court proceedings in England and Wales must

give disclosure of relevant documents, subject to some very narrow

exceptions. "Disclosure" means formally declaring that

documents or classes of documents exist or have existed (akin to

discovery in U.S. proceedings). However, the scope of documents

that require disclosure in English proceedings on the standard

order is more limited than the broader general U.S. standard, in

that a party is required to disclose documents that adversely

affect its own case or that support or adversely affect another

party's case. The opposing party has a right of inspection of

any disclosed documents that are not privileged.

The obligation to disclose documents extends to documents that

are within a party's "possession, custody or power,"

so if you or your opponent has the power to call for relevant

documents (e.g., as a parent company, from a subsidiary

company located in the U.S.), an application under § 1782 will

not be necessary.

Importantly, English rules of procedure do not permit the use of

depositions for witnesses and experts. Witnesses file sworn

statements of evidence (which are taken as evidence in chief) and

then are cross-examined at trial. A similar process is used for

expert testimony. It is also relevant to note that almost all civil

proceedings are determined by a judge or panel of judges, rather

than before a jury. Juries are only used in certain types of

criminal proceedings in the UK.

Routes to Obtaining Third Party Disclosure in English

Proceedings

As noted above, an application under § 1782 will only be

needed where documents are held by third parties to the

proceedings.

Section 1782 states that an application for a discovery order

can be made in two ways, either indirectly, "pursuant to a

letter rogatory issued, or request made, by a foreign or

international tribunal," or directly, "upon the

application of any interested person."

In South Carolina Insurance Co v Assurantie Maatschappij

"de Zeven Provincien" NV [1986] 3 All ER 487 (HL),

the House of Lords confirmed that either mode could be used in

English civil proceedings. Lord Brandon noted that § 1782

"allows an application to be made either indirectly by the

foreign court concerned or directly by an interested party, and I

can see no good reason why the defendants should not have chosen

whichever of these two alternatives they preferred."

However, there can be an important tactical advantage in making

an application under § 1782 directly to the U.S. court, given

the broader scope of discovery in the U.S. than English law allows.

As a matter of English law, the types of documents that...