Discovery Aid for International Proceedings (28 U.S.C. § 1782)
“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 …”
Requirements
- Applicant — any “interested person” (broadly construed; includes private parties)
- Respondent — a person “resides or is found” in the district (includes corporations with sufficient presence)
- For use in a “foreign or international tribunal” proceeding
- Proceeding must be reasonably contemplated — not just speculative (Intel Corp. v. Advanced Micro Devices, 2004)
Intel Factors (Discretionary)
Even when the statutory requirements are met, courts exercise discretion. Intel Corp. v. AMD (2004) lists four factors:
- Whether the target is a non-party to the foreign proceeding (favors discovery)
- The nature and character of the foreign tribunal and proceedings
- Whether the request is an attempt to circumvent foreign country proof-gathering restrictions
- Whether the request is unduly intrusive or burdensome
Scope
- Applicant need not show that discovery would be admissible in the foreign proceeding or that U.S. courts would allow analogous discovery in domestic litigation
- ZF Automotive US, Inc. v. Luxshare, Ltd. (2022): § 1782 does not apply to private commercial arbitration panels — only to governmental or intergovernmental adjudicative bodies; also does not apply to ad hoc investment arbitration under investor-state treaties