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.

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 Reading

Recent Posts

Applying China’s Personal Information Protection Law to U.S. Discovery Requests

On August 20, 2021, the Standing Committee of the National People’s Congress promulgated China’s Personal Information Protection Law (PIPL), which became effective from November 1, 2021. Chapter 1 of the PIPL contains general rules, Chapter 2 outlines rules for handling personal information, and Chapter 3 addresses cross-border transfer of personal information. Chapters 4, 5, and…

Continue Reading

MCLE Program on Section 1782

On Thursday, July 25, at 4:00 pm Pacific Time, the Bar Association of San Francisco will present a virtual program on “Navigating Discovery Relating to Foreign Proceedings: A Deep Dive into 28 U.S.C. § 1782.” I will participate, along with David Wallach (King & Spalding) and Kendra Marvel (Jones Day). A flyer for the program…

Continue Reading

Zooming Out of Forum Non Conveniens

A recently published note in the Columbia Law Review, written by Christabel Narh, draws a connection between the federal courts’ technological learning curve during the pandemic and the future of forum non conveniens. Zooming Our Way Out of the Forum Non Conveniens Doctrine argues that the federal courts’ trial-by-fire with videoconferencing and remote litigation during…

Continue Reading