Section 1782 Discovery

Section 1782 of Title 28 of the United States Code 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 evidence for use in the non-US proceeding. The full name of Section 1782 is "Assistance to foreign and international tribunals and to litigants before such tribunals."

The text of Section 1782(a) reads as follows:

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. 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.

In essence, an applicant under Section 1782 merely needs to show three things:

The type of evidence that may be obtained under Section 1782 includes both documentary evidence and testimonial evidence.

For many years, district courts and appellate courts disagreed as to

The case law concerning Section 1782 was largely clarified in 2004, when the Supreme Court of the United States issued its decision in Intel Corp. v. Advanced Micro Devices, Inc.Intel held that

The Court also largely did away with any requirement of "discoverability" before the non-US tribunal.

In essence, Intel held that section 1782 discovery is available to a non-US litigant almost as freely as discovery is available in connection with a lawsuit that is pending entirely before a court in the United States.

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