Section 1782 discovery applications: obtaining US-based evidence for litigation outside the US

What is Section 1782?

Section 1782 of United States Statute 28 USC (“Section 1782”) enables a party (or potential party) to proceedings taking place outside the US (a “foreign tribunal”) to obtain US-based evidence to support their case. This is done by requesting a US federal district court to issue an order compelling discovery from a person, company or other entity based in the US. For example, a party to English litigation that wishes to obtain evidence from a company based in San Francisco can apply for a Californian court to order the San Franciscan company to provide evidence.

Obtaining evidence from a third party is referred to as “disclosure” in the UK, “discovery” in the US and “offenlegung” in Germany. For the purposes of this article, we will refer to discovery.

What can be requested?

The evidence requested does not necessarily need to be accessible to the party through the law applicable to the main proceedings. This is particularly significant given the breadth of evidence available in US style discovery. The evidence that can be sought includes:

• Documents
• Testimony (ie oral evidence from a person, under oath if requested)
• A subpoena (ie ordering a person to appear before a person appointed by the US court)

Why use Section 1782?

In addition to the far-reaching evidence that might be able to be obtained, as set out above, benefits to using Section 1782 include:

• No requirement to apply to the non-US foreign tribunal first
• Disclosure can sometimes be obtained prior to the commencement of the foreign tribunal proceedings

What are the requirements under Section 1782?

There are three basic requirements which must be satisfied in order for the district courts to consider granting an application under Section 1782. District courts have a large amount of discretion in ordering disclosure under Section 1782, but it does not obligate them to do so.

1. Location: The person or entity from whom discovery is sought must reside or be found in the district of the court to which the request or application is made.

Under Section 1782, a district court may only compel an individual or entity to give disclosure if they reside or are found in the district of the court to which the application is made.  The individual or entity from whom discovery is sought does not have to be a participant in the non-US proceedings for the court to order discovery.

2. Relevant proceedings: The evidence sought must be for use in a proceeding in a foreign or international tribunal. 

Courts have interpreted this point broadly. To satisfy the “for use” requirement, the applicant need only show that the requested discovery would be used at some stage by a foreign tribunal. It may be possible to satisfy the for use requirement even if foreign proceedings have not begun, but are “reasonably contemplated”. It is important to note that a “tribunal” includes any decision making body that produces rulings that are reviewable by a court. The US Supreme Court defined a “foreign tribunal” as one that exercises governmental authority conferred by a single nation, and an “international tribunal” as one that exercises governmental authority conferred by two or more nations. The US court may, however, limit requests that are unduly intrusive or burdensome to the subject person or entity, or which are deemed to be primarily for purpose of harassment rather than proper information gathering. Private arbitration is typically considered to be outside of the scope of Section 1782 as the arbitration tribunal does not exercise any governmental authority.

3. Relevant requestor: The request or application must be made by the foreign or international tribunal or by an interested person.

The Supreme Court clarified that “any interested person” is intended to include not only litigants but also foreign and international officials and any other person who has “reasonable interest” in obtaining judicial assistance.

Procedure for a party to bring a Section 1782 request

Discovery requests under Section 1782 are typically made without first notifying the party from whom the evidence is requested (ie the application is made directly to the court by one party without giving notice to the other party). The requesting party must submit an application which outlines:

• What discovery is sought
• How the prerequisites for assistance under Section 1782 are met
• Reasons that the US district court should exercise its discretion to compel the requested discovery

As an application to compel discovery under Section 1782 is generally made without notice, the party requesting discovery will typically serve the documents on the individual or entity from whom discovery is sought after the court has already issued an order granting discovery.

What should you do if you receive an order for discovery under Section 1782?

It is important not to ignore any order for discovery made under Section 1782 or delay your response for too long. Although it will likely relate to proceedings taking place outside of the US, it is an order of the US federal district courts, and as such, non-compliance can have serious consequences.

If you have been served with an order under Section 1782, there are a number of options available to you once served. You may file a motion in response to the application, or an opposition to the application if it was made on notice. If there may be a technical, substantive or procedural objection to the request, if the documents or information sought form an unduly intrusive or burdensome request, or if the request was made to harass or is otherwise improper, a court may consider such arguments in limiting or denying an application for discovery under Section 1782.

To take these steps, it is important that you seek legal advice as soon as possible. Responding to such orders can be complicated and so it is best to seek legal advice early to assist you with the process of reviewing and responding to any discovery order.

For further information in relation to any aspect of Section 1782 orders or requests, please contact Eric France and Jonathan Christy of Mills & Reeve, or William J. Egan of Robinson & Cole LLP.