There are a number of issues to be aware of in seeking discovery via Section 1782. One issue debated by federal courts is whether Section 1782 permits discovery of documents that are located outside the United States where the party from whom discovery is sought is located in the United States. Additionally, U.S. courts have rejected the notion that a party must first try to obtain the discovery in question from the foreign tribunal before resorting to § 1782. In fact, even if the foreign tribunal declined to compel discovery, a party may still obtain discovery in the U.S. However, a U.S. court will deny discovery if it concludes that the foreign tribunal will not consider or will be offended by the discovery obtained in the U.S.
There is also a split among federal courts as to whether Section 1782 is available where the foreign proceeding is an arbitration. In Intel Corp. v. Advanced Micro Devices, 542 U.S. 241 (2004), the Supreme Court’s only decision addressing Section 1782, Justice Ginsburg opened the door by quoting the positive view of Columbia Law School professor Hans Smit, but did not decide the issue. Since Intel, federal courts have split over the issue. Compare In re Application of Oxus Gold, 2006 WL 2927615 (D.N.J. 2006) (granting petition) with In re Operadora DB Mexico, 2009 WL 2423138 (M.D. Fla. Aug. 4, 2009) (denying petition). The issue appears to hinge on the definition of the word “tribunal” within the meaning of the statute. Few Circuit Courts have considered the issue. However, the Third Circuit has held that a “bilateral investment treaty arbitration” “unquestionably” constitutes “use in a proceeding in a foreign or international tribunal.” In re Chevron, 633 F.3d 153 (3d Cir 2011). It is unclear whether the Court’s decision would apply to a private commercial arbitration.
Because of these and other distinctions among federal courts, it is critical that a petitioner’s counsel become familiar with local precedent before deciding on the commencement of a Section 1782 proceeding in connection with a foreign proceeding. Given the fractured nature of the precedent, parties seeking discovery should consider whether they will be making an application in a favorable jurisdiction. The benefits of § 1782 discovery can be significant, and parties engaged in foreign proceedings should consider its use to obtain evidence that would otherwise be unavailable.