Section 1782 of Title 28 of the United States Code is a federal statute that allows a litigant (party) to a legal proceeding outside the United States to apply to an American court to obtain evidence for use in the non-US proceeding, a process known as discovery. The full name of Section 1782 is "Assistance to foreign and international tribunals and to litigants before such tribunals".[1]
The text of Section 1782(a) reads as follows:
The district court of the district in which a person resides or 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, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person. ... The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.
A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.[2]
In essence, an applicant under Section 1782 needs to show three things:
(a) it is an "interested person" in a foreign proceeding,
(b) the proceeding is before a foreign "tribunal", and
(c) the person from whom evidence is sought is in the district of the court before which the application has been filed.[3]
The type of evidence that may be obtained under Section 1782 includes both documentary evidence and testimonial evidence.[4]
The Court then has a discretion whether to grant the discovery requested. Following the Intel decision (discussed below) the factors relevant to the exercise of this discretion include the following:
(1) whether the person from whom discovery is sought is a participant in the foreign proceeding;
(2) the nature of the foreign tribunal and the character of the proceedings;
(3) whether the application conceals an attempt to circumvent foreign proof-gathering restrictions or other policies; and
(4) whether the discovery sought is unduly intrusive or burdensome.[2]: 3
^28 U.S.C. § 1782
^ ab"IN THE Supreme Court of the United States ZF AUTOMOTIVE US, INC., GERALD DEKKER, AND CHRISTOPHE MARNAT, Applicants, V. LUXSHARE, LTD., Respondent" (PDF). www.supremecourt.gov. Supreme Court of the United States. October 15, 2021. p. 3. Retrieved March 14, 2023. This article incorporates text from this source, which is in the public domain.
^Abdollahi, Tony (April 2015). "The Hague Convention: A Medium for International Discovery". North Carolina Journal of International Law. 40 (3): 771.
^Bento, Lucas. "The Globalization of Discovery: The Law and Practice under 28 U.S.C. 1782". Wolters Kluwer.
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This article incorporates text from this source, which is in the public domain.
