Section 1782 is a powerful tool for obtaining discovery in the United States for use in a proceeding in another country or an international dispute.
Specifically, the key part of the statute says: “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.” (28 U.S.C. 1782.)
A request for discovery under Section 1782 can be made by “any interested person,” or by the foreign or international tribunal itself. This means that a non-party to the foreign dispute can use Section 1782 to obtain discovery. The statute is not restricted to parties to the foreign dispute.
The first step for obtaining discovery under Section 1782 is filing a petition in a federal district court in the United States. The correct district court is the court for the area in which the discovery target is located. For example, a petition to take discovery from a business located in New York City will be filed in the Southern District of New York.
Once the petition is granted by the court, the petitioning party must serve subpoenas for discovery on the target. If the discovery target objects to the scope of discovery, the target may file a motion to quash. Alternatively, if the discovery target refuses to comply, the petitioning party may file a motion to compel. Discovery under Section 1782 is governed by the Federal Rules of Civil Procedure, particularly Rule 26 and Rule 34.
Section 1782 discovery can be sought in support of a dispute pending in a foreign court. In addition, Section 1782 can be used for many quasi-judicial or administrative proceedings. However, there is a split between different U.S. jurisdictions about the application of Section 1782 to private commercial international arbitration. Depending on the location of the discovery target, discovery may or may not be available under Section 1782 for use in private international arbitration. If you are seeking discovery for use in a private arbitration proceeding, it is important to consult with an experienced Section 1782 practitioner for guidance.
Discovery under Section 1782 is a valuable tool, one that should not be underestimated by international practitioners and non-U.S. attorneys. The litigation team at DGW Kramer LLP has extensive experience with Section 1782. To learn more, please contact Rongping Wu ([email protected]) or Katie Burghardt Kramer ([email protected]).