The Broad Scope Of 28 U.S.C. Section 1782

Picture your client telling you they were considering starting a litigation, but that they did not yet have all the facts needed for you to prepare a pleading. Now add the wrinkle that the action would need to be forumed in a foreign country, one with discovery rules narrower than those in the United States, and then the kicker, that some of the relevant documents are held by third parties outside of the planned litigation forum. Although your initial reaction might be that your client is out of luck, 28 U.S.C. § 1782, which allows foreign litigants (or soon-to-be litigants) to obtain discovery in the United States, under U.S. discovery rules, for use in a pending or contemplated foreign proceeding, might offer some help.

Under Section 1782, a federal courts can grant an application for discovery in aid of a foreign proceeding (or planned proceeding) if the applicant: (a) has an interest in the foreign proceeding; (b) the discovery will be used in that foreign proceeding; and (c) the target of the discovery request resides in the judicial district where the request is made.1 However, federal courts can deny the discovery request, even when those statutory factors are met, based on purely discretionary factors such as whether the target is a party to the litigation, whether the applicant is attempting to circumvent either U.S. or foreign proof gathering restrictions, and whether the requests are found "unduly burdensome."2 Although one might think that overworked federal courts would often use those discretionary factors to deny discovery requests in support of litigation pending in a far-flung forum, federal courts routinely grant Section 1782 applications. Two recent decisions—one granting and one denying a Section 1782 application—show just how broad discovery under Section 1782 can be.

In a recent decision,3 the United States District Court for the District of Massachusetts granted a Section 1782 application for discovery in connection with litigation in Peru, even though it was not clear that the Peruvian court even had jurisdiction over that litigation (the question was, at the time, being reviewed by the Peruvian court). The district court reasoned that it need not wait for the Peruvian court to decide the jurisdictional question, or otherwise assess the applicants' likelihood of success in Peru because pursuant to the statute it was sufficient that the litigation was, again at the time, pending in Peru.4 Although the court also held...