The Extraterritorial Reach of 28 U.S.C. § 1782 in Aid of Foreign and International Litigation and Arbitration - Chapter 07 - International Arbitration and the Courts
Author(s):
Tyler B. Robinson
Page Count:
36 pages
Media Description:
1 PDF Download
Published:
September, 2015
Description:
Originally from International Arbitration and the Courts
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I. INTRODUCTION
Section 1782 of Title 28 of the United States Code affords federal
district courts in the United States discretion to order persons
“resid[ing]” or “found” in the United States to give testimony or produce
documents or other things “for use in a proceeding in a foreign or
international tribunal . . . upon the application of any interested person.”1
Section 1782 is a powerful tool – broadly available to foreign and
international tribunals, foreign litigants, and any other “interested
person”2 – to obtain discovery of documents and testimony from
individuals or business entities located in the United States.3 The
statute’s principal objective, as illuminated by the United States Supreme
Court, is “to assist foreign tribunals in obtaining relevant information
that the tribunals may find useful but . . . cannot obtain under their own
laws.”4 A majority of U.S. courts have held that at least some species of
international arbitral tribunals qualify as “a foreign or international
tribunal” within the meaning of § 1782, thus making the construction and
application of § 1782 in the U.S. courts a topic of considerable interest
among practitioners of international arbitration.
In this latter connection, many courts have expressed doubts about
whether § 1782 authorizes a U.S. court to order a person “residing” or
“found” in the United States to produce documents within that person’s
possession, custody or control that are located outside the United States.6
These courts, some of them after considerable treatment of the subject,
opine – in dicta, based on dicta, in a kind of snowball effect – that
§ 1782 permits discovery through a U.S. court only of documents located
inside the United States.7 However, virtually every one of these decisions
has gone on to conclude that it need not decide the issue on the facts
because the request for document discovery that was presented to the
court ultimately turned on other grounds.8 Only a few courts have
purported squarely to address whether § 1782 can be used to obtain
documents outside the United States from a person residing or found
inside the United States. Those that have, disagree with each other.9
Apart from taking issue with the snowball of dicta that continues to
accumulate the weight of precedent undeservedly, this article challenges
the prevailing view that § 1782 does not authorize discovery of
documents located abroad. At first glance, the notion that U.S. law
would make available to foreign and international tribunals and litigants
in a U.S. court documents that are located outside the United States, for
use in a foreign or international proceeding conducted – whether actually
or constructively – outside the United States, may seem like an
extraterritorial application of U.S. law at its worst. What business does a
U.S. court have providing U.S.-style discovery of documents outside the
United States for purposes of foreign or international proceedings outside
the United States? On closer reflection, however, there may well be
circumstances where the availability of such assistance from a U.S. court
is desirable. As a matter both of the plain text of § 1782 and its
underlying policy and comity objectives, the better view is the presently
minority one that § 1782 authorizes U.S. courts to order the production
of documents located outside the United States, in their discretion, when
such documents are subject to production in U.S. courts in accordance
with the Federal Rules of Civil Procedure.
The same question arises in relation to witness testimony, as § 1782
authorizes U.S. courts to provide testimonial discovery in addition to
document discovery. Is a U.S. court empowered under § 1782 to order a
“person” “residing” or “found” in the United States to provide testimony
or a statement from a witness located abroad, to the extent that the
Federal Rules of Civil Procedure would empower a U.S. court so to do in
a U.S. proceeding? The question may arise in at least two scenarios: (i)
an individual witness from outside the United States who is served with a
subpoena under § 1782 for his testimony while traveling in the United
States (so-called “tag” jurisdiction) but who then returns home. Can that
witness be compelled by a U.S. court to return to the United States to
give testimony in accordance with the subpoena for purposes of a foreign
or international proceeding? and (ii) in relation to a corporate or legal
entity “person.” Can a corporate person “found” or “residing” in the
United States be compelled to bring to the United States a corporate
officer, director, or managing agent from outside the United States to
give testimony on behalf of the entity for use in a foreign or international
proceeding?