Discovery

The United States is an outlier both in the amount of discovery permitted during litigation in its courts and in its willingness to assist evidence gathering on behalf of foreign and international courts. The readiness of U.S. courts to compel production by foreign parties of evidence located in foreign countries has at times spurred protests by those countries, particularly in the context of antitrust litigation. When that extraterritorial evidence is in the hands of a nonparty, U.S. courts must seek assistance from the country where the evidence is located because a court can only compel persons subject to its authority to testify or produce documents. To request such assistance, U.S. courts may invoke the Hague Evidence Convention or rely on letters rogatory, both of which are imperfect mechanisms. Meanwhile, Congress has broadly authorized the federal courts to assist with discovery on behalf of foreign or international tribunals through 28 U.S.C. § 1782.

Recent Posts

Highlights from the Media Coverage of ZF Automotive

The Supreme Court’s unanimous decision in ZF Automotive US, Inc. v. Luxshare, Ltd. has generated discussion, criticism, and approval in the transnational litigation and international arbitration communities. Writing for the Court, Justice Barrett relied on the meaning of the term “tribunal,” specifically when paired with “foreign” or “international,” to resolve a major circuit split and…

Continue Reading

ZF Automotive: Closing a Door, Opening a Window

The Supreme Court’s decision in ZF Automotive US, Inc. v. Luxshare, Ltd. drew a bright line for a statute that is otherwise regulated almost entirely by judicial discretion. In a terse and unanimous opinion, Justice Barrett wrote that Section 1782 does not permit district courts to order discovery for use in private international arbitration. The…

Continue Reading

A Primer on State Law in Transnational Litigation

[Editors: This post is one in a series of Primers on topics in transnational litigation. Primers on each of the topics listed in the Topics menu are planned, and some already appear on the relevant topic pages.] The procedural and substantive rules that U.S. courts apply in transnational litigation come from many sources, including the…

Continue Reading