International problem: 

You are litigating a case in a foreign jurisdiction, yet crucial evidence is within the United States.  How do you obtain and use the evidence?  Thanks to 28 U.S.C. § 1782, all individuals or organizations with an interest in foreign or international legal proceedings may obtain broad U.S.- style discovery in support of proceedings abroad, whether or not such discovery is authorized in the foreign jurisdiction.

Section 1782, in part, provides 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. . . . The order may be made . . . upon the application of any interested person . . . .”

As is evident per the terms of the statute and the decision of the Supreme Court of the United States in Intel v. Advanced Micro Devices, Inc, 542 U.S. 241 (2004) “any interested person” may obtain testimony or the production of documents from individuals with pertinent information found or residing in the U.S.  The Supreme Court has found that “any interested person” is not limited to parties to the proceedings abroad.  Additionally, such information may be obtained prior to the commencement of foreign or internationals proceedings, as the Supreme Court has held that the proceedings must only be “reasonably contemplated”, rather than “pending” or “imminent”.  Section 1782 is also available in “quasi-judicial” proceedings.

But, the U.S. federal district court’s decision to grant such a request is discretionary.  So, what will a court consider in deciding whether or not to grant your request?  According to the Supreme Court, a court must consider at least the following factors:

(1) whether or not the individual that may be ordered to testify or produce documents is a party to the foreign proceeding because if the individual is a party to the foreign proceeding the foreign tribunal has the power to order discovery from it;

(2) the nature of the tribunal, the character of the proceedings and the receptivity of the foreign government, court or agency to U.S. judicial assistance;

(3) whether the request is merely an attempt to circumvent foreign discovery; and

(4) whether the request is unduly intrusive or burdensome.

In sum, individuals and organizations involved in international or foreign proceedings with important information and individuals located in the U.S. should consider Section 1782 to bolster the conduct of the proceedings abroad.