Originally from:
The Practice of International Litigation - 2nd Edition - Looseleaf
The Practice of International Litigation - 2nd Edition - Electronic
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Production of Evidence for Use in Foreign Tribunals
Lawrence W. Newman and Michael Burrows
An international litigator in U.S. courts will frequently need to obtain
discovery, documents or testimony abroad, and the issues involved and
avenues available in obtaining such evidence are likely to be familiar to him,
and have been considered at the Supreme Court level. Perhaps less well
known, however, are issues involving the reverse problem, obtaining
evidence in the United States for use before foreign and international
tribunals. In this chapter, we discuss section 1782 of Title 28, United States
Code, the principal provision empowering federal courts to assist foreign and international
tribunals and litigants. After briefly examining the history of the provision,
we consider judicial decisions holding that evidence cannot be obtained
under section 1782 that could not otherwise be obtained under the law or
procedure of the foreign jurisdiction, perhaps the principal issue of interest
to civil litigants seeking assistance under section 1782.
Section 1782, entitled “Assistance to Foreign and International
Tribunals and to Litigants before such Tribunals,” provides:
(a) 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.
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 and may direct that the testimony or statement be given,
or the document or other thing be produced, before a person appointed by
the court. By virtue of his appointment, the person appointed has power to
administer any necessary oath and take the testimony or statement. The
order may prescribe 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.
A person may not be compelled to give his testimony or statement or to
produce a document or other thing in violation of any legally applicable
privilege.
(b) This chapter does not preclude a person within the United States from
voluntarily giving his testimony or statement, or producing a document or
other thing, for use in a proceeding in a foreign or international tribunal
before any person and in any manner acceptable to him.
Lawrence W. Newman has been a partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of 4 works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.
