Are you involved in litigation, arbitration or a government investigation in Latin America and would benefit from obtaining documents or testimony?

Federal statutory law in the United States provides an avenue for individuals or entities engaged in disputes outside the United States to obtain discovery relevant to that dispute from sources within the United States.  To learn about the different corporate entities that are available in the United States, you can read Brown Rudnick’s article on that topic by clicking here.

The so-called “Section 1782 discovery” permits a foreign or international tribunal or “any interested person” in a proceeding taking place outside of the United States to obtain discovery located within the United States if Section 1782’s basic prerequisites are satisfied.  The statutory requirements to obtain such discovery are: (1) that the request is made either by the foreign or international tribunal or any interested person in the foreign proceeding; (2) the request must seek evidence—whether it be the testimony or statement of a person, or the production of a document or other things such as electronic data, digital records, audio recordings, video recordings, and any other tangible or intangible items; (3) the evidence must be for use in a proceeding in a foreign or international tribunal; and (4) the person from whom discovery is sought must reside or be found in the United States district of the district court ruling on the application for assistance. 

If the above statutory requirements are met, U.S. district courts are to exercise their discretion and order the requested discovery be provided with the so-called “twin aims” of Section 1782 in mind: (1) providing efficient means of assistance to participants in litigation in U.S. federal courts, and (2) encouraging foreign countries by example to provide similar means of assistance to U.S. courts.  While there are limits to Section 1782’s use—for example, it is not to be utilized to circumvent foreign proof-gathering restrictions or other policies of a foreign country and is not to be unduly intrusive or burdensome—it is a very useful tool that permits litigants in disputes outside of the United States to obtain discovery quickly and efficiently from U.S. sources if the evidence is relevant to the dispute. Section 1782 discovery is commonly used in the context of private, commercial and administrative disputes, while its application to criminal matters is more limited.

The application to the U.S. court to obtain Section 1782 discovery is typically commenced unilaterally, though the targets of the discovery have an opportunity to be heard in the U.S. court if they choose to assert that the Section 1782 discovery order should not be made to protect against, for example, undue burden.  The application itself typically takes the form of a legal brief and supporting affidavits setting forth the nature of the foreign dispute and why the discovery located in the U.S. is needed.  The U.S. court will review the application, first considering whether the statutory requirements for the order are met and, if so, whether, under the facts and circumstances, Section 1782 discovery should be produced. The timeline for Section 1782 discovery can vary depending on factors such as the complexity of the case, the willingness of involved parties to cooperate, and the court's workload. The duration of the process can range from a few months to a year, or more. The court will typically set deadlines and schedules with a view to moving the process forward efficiently.

The availability of Section 1782 is not limited to a specific phase of a case, and can be used in pre-trial stages, during trial preparation, or even after the foreign tribunal has rendered a decision in connection with, for example, enforcement of a judgment or an appeal. Evidence obtained through Section 1782 is provided to the party that initiated the request, and it is then the responsibility of that party to introduce the evidence in the foreign or international tribunal where their legal proceeding is taking place. To explore whether you can initiate an international arbitration, you can read Brown Rudnick’s article on that topic by clicking here.

If a person or entity in the United States refuses to comply with a Section 1782 order issued by a U.S. district court, the court has the authority to impose sanctions, which can include fines or seizure of assets belonging to the non-compliant party. Additionally, the court can hold the non-compliant party in contempt.

The Section 1782 discovery tool is an efficient and useful way to obtain needed discovery in the U.S. in aid of non-U.S. disputes and proceedings. To learn how you can benefit from litigation funding, you can read Brown Rudnick’s article on that topic by clicking here.

If you are involved or contemplate being involved in litigation, international arbitration or a government investigation and would like to obtain evidence from a person located in the U.S. let us know. Our international team of litigators can help calibrate a customized strategy designed to meet the unique needs of your case.