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Obtaining Evidence in the US

Section 1782 discovery is one of the best-kept secrets in the legal world.

Section 1782 is a federal statute that allows a litigant (party) to a legal proceeding outside the United States to apply to an American court to obtain documentary evidence or testimonial evidence for use in the non-US proceeding.

Section 1782 provides (in relevant part):

The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person . . . . The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.

When filing a motion for discovery under section 1782,
  • there is no need to file your law suit in the United States -- you only need to file a motion for discovery;
  • there is no need to have first requested the discovery before the non-US tribunal; and
  • sometimes discovery can be granted even before a law suit is commenced outside the United States.
Section 1782 has received great attention in recent years, following a ruling by the Supreme Court of the United States that section 1782 discovery is available to a non-US litigant almost as freely as discovery is available in connection with a law suit that is pending entirely before a court in the United States.

Section 1782 is the "Weapon of Choice" of the International Litigant -- New York State Bar Association, 1999
We at ILN see tremendous potential for non-US companies (and their non-US legal counsel) in taking advantage of American evidence-gathering procedures and tools. Discovery (evidence-taking) in the United States is generally considered the most extensive of any country in the world. Non-US lawyers and parties are frequently amazed at the extent to which American judges allow parties to request, and insist upon receiving, copies of documents that are relevant to the case. Similarly, non-US lawyers and litigants are frequently amazed at the deposition procedure -- a process by which a lawyer for one party has an opportunity to cross-examine witnesses (party witnesses and non-party witnesses) months before the evidence is presented to a judge (or jury).

Depending on the circumstances of your case, the law firms of the International Litigation Network can assist in obtaining (for example) correspondence (including e-mails), business documents, or written testimony that might otherwise not be available (in the non-US proceeding) but which could be extremely valuable in connection with understanding a business dispute.

The lawyers in the ILN network have substantial experience in representing non-US businesses in section 1782 applications and, generally, in discovery-related matters.

Because the ILN law firms cover almost every major commercial center in the United States, one of the ILN law firms can probably assist you regardless of where you seek to obtain evidence.

In some cases, we have succeeded in obtaining section 1782 discovery orders on an ex parte basis (prior to the court's hearing from the other side).

Also, based on our experience in representing non-US companies, we know that cost is an important factor in any company's litigation strategy, and we plan our work accordingly -- including, as necessary, consulting with our client's legal counsel in the country where the non-US litigation is pending.

We believe that non-US businesses are only beginning to realize the tremendous advantages that section 1782 discovery can provide to them in their non-US litigation that has a connection to the United States. We would welcome the opportunity to help your company become a member of that growing club of non-US businesses that use American evidence-gathering to their advantage.