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U.S. Discovery For Use In Foreign Proceedings: Navigating Cross-Border Discovery Under 28 U.S.C. § 1782

American Bar Association Litigation Journal

In this article, Litigation Member Laura Ferguson discusses a federal statute, 28 U.S.C. § 1782, which provides a mechanism for litigants in foreign proceedings to conduct discovery here in the United States. Whether you represent a party petitioning for a section 1782 subpoena, the subpoena respondent, or the foreign target of the U.S. discovery, there are several facets of the statute to consider when advising your client and many recent court decisions to evaluate when deciding how to proceed. The author reviews three statutory requirements that the courts deciding whether to issue a section 1782 subpoena must first determine whether the petitioner has met. If the statutory elements are met, the court will then exercise its discretion whether to grant the petition, applying the four factors identified by the Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004). The author concludes that with the rise in cross-border discovery, global litigators initiating or responding to section 1782 discovery will want to monitor the case law in the jurisdiction issuing the section 1782 subpoena to ensure that the discovery satisfies the statute's requirements and is tailored to satisfy the discretionary Intel factors.