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.
A Primer on Transnational Discovery
Discovery is a formal process in which each party gathers information relevant to its case. Transnational discovery may be necessary to obtain information located abroad for use in U.S. courts or to obtain information located in the United States for use in foreign courts. As a general matter, courts may order parties subject to their…
Continue ReadingA Primer on Foreign State Compulsion
Foreign state compulsion (also called foreign sovereign compulsion) is a doctrine allowing a U.S. court to excuse violations of U.S. law or moderate the sanctions imposed for such violations on the ground that they are compelled by foreign law. The doctrine arises most often when foreign law blocks compliance with U.S. discovery requests and in…
Continue Reading“Tag Service” and Section 1782
[This post originally appeared at Letters Blogatory and is reprinted here with the author’s permission.] Bill Dodge has a really interesting post about a decision from the bench in an SDNY Section 1782 case, In re Fourworld Event Opportunities Fund. Decisions like this are from the darkest corner of the legal dark web. They are not published. They are not available…
Continue ReadingTagging Corporate Directors for Discovery under Section 1782
Section 1782 authorizes federal district courts to order any person who “resides or is found in” the judicial district to provide discovery “for use in a proceeding in a foreign or international tribunal.” The Second Circuit has held that “that § 1782’s ‘resides or is found’ language extends to the limits of personal jurisdiction consistent…
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