George Benaur, Benaur Law LLC

Foreign litigants pursuing cases in other jurisdictions need to be aware of the opportunity to pursue discovery in aid of their proceedings – such as litigations and potentially arbitrations – in the United States. Such discovery may be authorized by federal statute which enables applicants to obtain permission from the Court, if a proper showing is made, to subpoena “persons,” including individuals and companies located in a particular U.S. jurisdiction, such as banks, to produce documents and/or give testimony to uncover facts and information that is of use in the foreign proceedings. For example, one very effective use of this law may be made in commercial litigations where the defendant may be hiding assets through use of U.S. banks or the U.S. financial system.

“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.A. § 1782(a).

The Second Circuit has held that § 1782 requires that a three part test must be met prior to its invocation: (1) that the person from whom discovery is sought reside (or be found) in the district of the district court to which the application is made, (2) that the discovery be for use in a proceeding before a foreign tribunal, and (3) that the application be made by a foreign or international tribunal or “any interested person.” Esses, 101 F.3d at 875 (quoting Gianoli Aldunate, 3 F.3d at 58).

In analyzing the second element of this test, . . . we have, . . . previously focused on two questions: (1) whether a foreign proceeding is adjudicative in nature; and (2) when there is actually a foreign proceeding. . . . [T]he district court need not satisfy itself that the discovery sought in the petition is of information that would be discoverable under the laws of the foreign jurisdiction in which the proceeding is pending. Euromepa, S.A. v. R. Esmerian, Inc., 154 F.3d 24, 27-28 (2d Cir. 1998).

[T]he planned proceedings must be withing reasonable contemplation. In other words, the applicant must have more than subjective intent to undertake some legal action, and instead must provide some objective indicium that the action is being contemplated….[T]he Supreme Court’s inclusion of the word “reasonable” is the “within reasonable contemplation” formulation indicates that the proceedings cannot be merely speculative. At a minimum, a § 1782 applicant must present to the district court some concrete basis from which it can determine that the contemplated proceeding is more than just a twinkle in counsel’s eye. Certain Funds, Accts. &/or Inv. Vehicles v. KPMG, L.L.P., 798 F.3d 113, 123-24 (2d Cir. 2015). [A] district court is not required to grant a § 1782(a) discovery application simply because it has the authority to do so. . . . [N]onparticipants in the foreign proceeding may be outside the foreign tribunal’s jurisdictional reach; hence, their evidence, available in the United States, may be unobtainable absent § 1782(a) aid. . . . [A] court presented with a § 1782(a) request may take into account the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance. . . . [A] district court could consider whether the § 1782(a) request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States. Also, unduly intrusive or burdensome requests may be rejected or trimmed. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264-65, 124 S. Ct. 2466, 2482-83 (2004) (citations omitted).

Benaur Law has experience successfully prosecuting such applications. For example, we have obtained the enclosed order from the Southern District of New York authorizing such discovery, which led to subpoenas to ten banks which had presence in New York. Please contact for any further assistance with such matters.

1782 Application Granted copy

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