Foreign Litigant’s Use of U.S. Courts to Discover Material Facts and Information in Aid of Their Cases

George Benaur, Benaur Law LLC

New York, March 27, 2019.

Foreign clients pursuing claims in tribunals outside of the United States are sometimes not aware that they have options here in the United States courts that may assist them in discovering evidence in support of their cases abroad. Indeed, Section 1782 provides that:

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 . . . . The order may be made . . . upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court . . . . 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. 28 U.S.C. §1782(a).

The statutory requirements are: “(1) the person from whom discovery is sought resides (or is found) in the district of the district court to which the application is made, (2) the discovery is for use in a foreign proceeding before a foreign or international tribunal, and (3) the application is made by a foreign or international tribunal or any interested person.” Brandi–Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76, 80 (2d Cir. 2012).

The annexed decision – In re Application of the Children’s Inv. Fund Found. (UK), Sir Christopher Hohn, and Axon Partners, LP for An Order to Take Discovery Pursuant to 28 U.S.C. § 1782, No. 18-00104 (S.D.N.Y. Jan. 30, 2019) – is a good review of Section 1782 law for those interested in pursuing this option in the United States.

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