United States federal statute 28 U.S.C. Section 1782 gives a U.S. federal court discretion to grant foreign litigants access to information in the U.S. that is unavailable otherwise. Section 1782 is not a conduit to circumvent the law in the foreign proceedings, nor a method to fish for information that is protected abroad. This note provides a primer on Section 1782. If you have questions on Section 1782 or on conducting investigation and discovery in international matters, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.

Standard Under 28 U.S.C. Section 1782

28 U.S.C. Section 1782 authorizes, but does not require, federal courts to assist applicants in gathering evidence for use in foreign tribunals. In re Kurbatova, 18-mc-81554-BLOOM/Valle (S.D. Fla. May 17, 2019) at *2. Whether to grant relief under the statute is up to the Court’s discretion. Id. The Court may not grant an application under Section 1782 unless four statutory requirements are met:

• The request must be made “by a foreign or international tribunal” or by “any interested person;”
• The request must seek evidence, be it the testimony or statement of a person or the production of a document or other thing;
• The evidence must be “for use in a proceeding in a foreign or international tribunal;” and
• The person from whom discovery is sought must reside or be found in the district of the district court ruling on the application for assistance.

Id. (citing 28 U.S.C. Section 1782).

If these statutory requirements are met, the Court must then analyze and weigh discretionary factors enunciated in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) and progeny. Id. at *5. The non-exhaustive Intel factors include:

• Whether the respondents are parties in the foreign proceeding;
• The nature of the foreign tribunal, the character of the proceedings abroad and the receptivity of the foreign tribunal to assistance from a U.S. federal court;
• Whether the discovery application conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States; and
• Whether the request is intrusive or burdensome.

Id. If the Court initially grants a Section 1782 application without the benefit of arguments relating to the Intel factors, the Court may later reconsider and vacate its order upon finding that these Intel factors weigh in favor of respondents.

The Section 1782 applicant must prove these elements with more than a self-serving affidavit lacking exhibits or foreign law citations. See, e.g., Fuhr v. Credit Suisse, 1:13-mc-21598-WJZ at n.11 (11th Cir. May 2, 2017) (not published but cited here as persuasive authority that conclusory statements made in a Section 1782 applicant’s affidavit do not constitute sufficient evidence to sustain a Section 1782 application); Wilkins v. Commercial Inv. Tr. Corp., 153 F.3d 1273, 1277 (11th Cir. 1998) (holding conclusory statements in plaintiff’s affidavits insufficient); Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) (holding conclusory allegations “have no probative value”).

Whether to grant relief under 28 U.S.C. Section 1782 is up to the Court’s discretion, there is no obligation to grant aid whatsoever. In re Kurbatova, 18-mc-81554-BLOOM/Valle at *2 (S.D. Fla. May 17, 2019). However, the Court may not grant a Section 1782 application unless the applicant proves that all four statutory requirements are met, including prong three requiring that the evidence sought must be “for use in a proceeding in a foreign or international tribunal.” Id. (citing Section 1782).

The foreign forum must be a sufficient “tribunal” under U.S. law, and the foreign proceedings must be at a stage or forum that will take new evidence under its laws. In re Petrobras Securities Litigation, 393 F. Supp. 3d 376, 386 (S.D.N.Y. 2019) (denying Section 1782 aid because a private Brazilian arbitration does not suffice the statutory “tribunal” requirement); NBC v. Bear Stearns, 165 F. 3d 184, 185 (2d Cir. 1999) (holding private commercial arbitration does not suffice the statutory “tribunal” requirement of Section 1782); In re Euromepa, S.A. v. R. Esmerian, Inc., 154 F.3d 24, 28 (2d Cir. 1998) (holding “a court may properly look to foreign law” on this element, and finding discovery could not be “for use in” a French Supreme Court appeal as that court was not taking and hearing new evidence).

For example, as Judge Rakoff of the Southern District of New York recently explained in In re Petrobras, an arbitral tribunal established in Brazil by private parties is not a “foreign tribunal” within the meaning of Section 1782 and thus cannot fulfill the Section 1782 statutory requirements. 393 F. Supp. 3d at 386. As Judge Rakoff confirmed, the Supreme Court’s decision in Intel Corp. v. Advanced Micro Devices, 542 U.S. 241 (2004) did not overrule NBC v. Bear Stearns, 165 F. 3d 184 (2d Cir. 1999), which is still good law and also holds that a private commercial arbitration abroad is not a “proceeding in a foreign or international tribunal” and does not suffice the statutory requirements of Section 1782. NBC at 185.

On the Intel Test for Section 1782

Again, if the Section 1782 statutory requirements are met, the Court must then analyze and weigh discretionary factors enunciated in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) and progeny. Id. at *5. The non-exhaustive Intel factors include: (1) whether the respondents are parties in the foreign proceeding; (2) the nature of the foreign tribunal, the character of the proceedings abroad and the receptivity of the foreign tribunal to assistance from a U.S. federal court; (3) whether the discovery application conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States; and (4) whether the request is intrusive or burdensome.

As to the first Intel factor, “whether the respondents are parties in a foreign proceeding,” the Supreme Court has held that the need for Section 1782 aid is “generally not as apparent” when the subpoena targets persons participating or involved in the foreign proceeding. In re Kurbatova at *5–6. In other words, where the respondents are already involved in the foreign proceeding, that foreign tribunal is already equipped and has exercised jurisdiction to order and control evidence, and the U.S. court should refrain from involvement or interference through Section 1782 activity.

Further, where the Section 1782 respondent is an officer, owner, or agent of a company that is a party to the foreign proceeding, and the Section 1782 discovery is for claims relating to that company, then the Court should determine whether that discovery should be had through the company itself in the foreign proceeding, rather than through Section 1782 aid on the officer or agent abroad. Kiobel v. Cravath, Swaine & Moore LLP, 895 F.3d 238, 245 (2d Cir. 2018) (citing Schmitz v. Bernstein Liebhard & Lifshitz, LLP, 376 F.3d 79, 85 (2d Cir. 2004) (“Although technically the respondent in the district court was [a non-party], for all intents and purposes petitioners are seeking discovery from [the company that is party to the foreign proceeding], their opponent in the [foreign] litigation. Intel suggests that because [the company that is party to the foreign proceeding] is a participant in the [foreign] litigation subject to [foreign] court jurisdiction, petitioner’s need for Section 1782 help ‘is not as apparent.’”).

As to the second Intel factor relating to the “nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance,” the applicant should provide sufficient information or law from the foreign jurisdiction for the Court to analyze this factor. Some courts may examine whether a party has first attempted the discovery abroad, and whether it can be obtained there at all. See, e.g., In re Chevron Corp., 762 F. Supp. 2d 242, 252 (D. Mass. 2010); In re Ryanair Ltd., No. 5:14-mc-80270-BLF-PSG, 2014 WL 5583852, at *2 (N.D. Cal. Oct. 31, 2014)); In re LG Elecs. Deutschland GmbH, No. 12cv1197-LAB (MDD), 2012 WL 1836283, at *2 (S.D. Cal. May 21, 2012)).

If the Court cannot fully analyze and comfortably determine propriety under the Intel factors, the Court may opt to stay the proceedings until it has more information on the nature and status of the foreign proceedings and determination of discovery there. Under In re Application of Alves Braga, 789 F. Supp. 2d 1294 (S.D. Fla. 2011), the Court may alternatively enter a stay of Section 1782 proceedings and provision of discovery to await discovery determinations from the foreign proceeding. 789 F. Supp. 2d at 1307–10 (granting stay of Section 1782 proceeding to await discovery determinations from the foreign tribunal). This stay option preserves the jurisdiction of the foreign proceeding, reflects the better position of the foreign forum to make accurate rulings on discovery that comply with the foreign law, and supports comity between the U.S. and the foreign jurisdiction.

Ultimately, application for Section 1782 aid or defense of Section 1782 requests requires analysis by a competent attorney. This note has only provided a primer on Section 1782. If you have questions on Section 1782 or conducting investigation and discovery in international matters, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.