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AMERICAN DISCOVERY FOR FOREIGN LITIGATION

This article explores the provisions of 28 USC 1782(a), which allows U.S. district courts to order discovery for use in foreign legal proceedings. Understanding eligible proceedings, parties who may seek discovery, and what can be obtained is crucial for foreign litigants. The article examines notable cases such as Intel v. Advanced Micro Devices and Kaiser Group v. World Bank, illustrating the scope of evidence that can be sought, including documents and testimony. Key considerations include the role of foreign tribunals and the criteria for obtaining discovery.

nakeisha-johnson
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AMERICAN DISCOVERY FOR FOREIGN LITIGATION

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  1. AMERICAN DISCOVERY FOR FOREIGN LITIGATION

  2. The Federal statute:28 USC 1782(a) • “The district court of the district in which a person resides of is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal,…”

  3. What “proceedings”? • Courts – civil and criminal • Administrative agencies • The European Commission (a “first instance decision maker”) • “Criminal investigations conducted before formal accusation.” • Arbitrations – Kaiser Group v. World Bank

  4. Who may seek discovery? • A foreign court by letter rogatory • A litigant in a foreign proceeding • “Any interested person” -- • Intel v. Advanced Micro Devices, a complainant in an antitrust matter before the European Commission.

  5. At what stage of the “proceeding”? • Before a litigation commences – The “reasonable contemplation” standard. • While on appeal – Brandi-Dohrn v. IKB • After completion of all appeals? To obtain facts for reargument not an adequate showing, Euromepa v Esmerian.

  6. “For Use in a Proceeding” • The discovery sought need not be available under the law of the foreign tribunal – Intel • The evidence sought need not be admissible under the law of the foreign tribunal – Brandi-Dohrn

  7. From Whom Can Discovery be Obtained? • Non-parties to the foreign proceeding. • Parties to the foreign proceeding? What if the foreign tribunal has denied discovery? Again, Intel. • “Resides or is found”.

  8. What is Obtainable? • Documents • Testimony under the rules of the foreign tribunal • A U.S. style deposition.

  9. The Exercise of Discretion • The view of the foreign tribunal. • Admissibility of the evidence in the foreign tribunal • Discoverability of the evidence in the foreign jurisdiction – Application of Gianoli • The view of the foreign state – Schmitz v. Bernstein • Reciprocal discovery

  10. Case citations • Kaiser Group v. World Bank, 2011 WL 1753966 (D.C.Cir. April 28, 2011) • Intel v. Advanced Micro Devices, 542 US 241(US Supreme Court 2004) • Brandi-Dohrn v. IKB, 2012 WL 695541(2nd Cir. March 6, 2012) • Euromepa S.A. v. R. Esmerian, Inc., 154 F.3d 24 (2nd Cir. 1998) • In re GianoliAldunate (Application of Gianoli), 3 F.3d 54 (2nd Cir. 1993) • Schmitz v. BernstienLiebhard & Lifshitz LLP, 376 F.3d 79 (2nd Cir. 2004)

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