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Obtaining Discovery in the U.S. for Use in Foreign Tribunals

Foreign litigants recently successfully sought the assistance of the United States District Court for the District of Massachusetts in obtaining discovery of Massachusetts residents and a Massachusetts company for use in a foreign proceeding.  See In re Penner, No. 17-CV-12136-IT, 2017 WL 5632658 (D. Mass. Nov. 22, 2017).  The foreign litigants in that case relied on a Federal Statute, 28 U.S.C. ยง 1782, that permits U.S. District Courts to order discovery for use in foreign proceedings under certain circumstances.  Section 1782 provides, in pertinent part, "[t]he 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."  In granting discovery pursuant to Section 1782, the Penner court relied upon the United States Supreme Court's analysis of that statute in Intel Corp. v. Advanced Micro Devices, Inc. 

In Intel, the U.S. Supreme Court set forth four requirements that must be met for a court to grant a discovery request pursuant to Section 1782:  (1) the person or entity from whom the discovery is sought must reside or be found in the district in which the court sits, (2) the discovery must be for use in a "foreign or international tribunal," (3) the application must be made by an "interested person," i.e., a person who "possesses a reasonable interest in obtaining judicial assistance", and (4) the discovery must not require disclosure of privileged materials.  Id. at 256, 259.   

However, the Supreme Court explained that while a requesting party must meet the foregoing statutory elements in order to obtain discovery in the U.S., satisfaction of those elements does not mandate discovery.  Id. at 247.  Accordingly, the Intel Court set forth four additional discretionary factors for a court to consider when determining whether to grant discovery.  First, if the individual or entity from whom the discovery is sought is a party to the foreign proceeding, "the need for Section 1782(a) aid is generally not as apparently as it ordinarily is when evidence is sought from a nonparticipant."  Id. at 264.  Second, the court must consider whether the foreign court is likely to be receptive of the discovery obtained in the United States.  Id.  The third discretionary factor is whether the request for aid in the United States circumvents discovery restrictions or other policies of the foreign country or the United States.  Id. at 265.  Finally, as is the case with discovery requests in U.S. litigation, the court must consider whether the requested discovery is unduly intrusive or burdensome.  Id.

In granting the application for Section 1782 discovery, the District Court in Massachusetts found that all four mandatory factors had been reached and that, "[o]n balance, the Intel discretionary factors weigh in favor of granting the requested discovery."  In re Penner, 2017 WL 5632658, at *4.  As In re Penner demonstrates, Section 1782 may be a useful tool for foreign litigants to consider when U.S. companies or individuals have documents or information relevant to a proceeding in a foreign tribunal.  U.S. lawyers representing international clients should consider Section 1782, both its potential for useful discovery sought by the international clients and the potential that it will be invoked to seek discovery from the international clients, when thinking about international litigation.

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