AMERICAN DISCOVERY FOR FOREIGN LITIGATION. The Federal statute:28 USC 1782(a).
AMERICAN DISCOVERY FOR FOREIGN LITIGATION
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“The district court of the district in which a person resides of 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,…”
Courts – civil and criminal
The European Commission (a “first instance decision maker”)
“Criminal investigations conducted before formal accusation.”
Arbitrations – Kaiser Group v. World Bank
Who may seek discovery?
A foreign court by letter rogatory
A litigant in a foreign proceeding
“Any interested person” --
Intel v. Advanced Micro Devices, a complainant in an antitrust matter before the European Commission.
At what stage of the “proceeding”?
Before a litigation commences – The “reasonable contemplation” standard.
While on appeal – Brandi-Dohrn v. IKB
After completion of all appeals? To obtain facts for reargument not an adequate showing, Euromepa v Esmerian.
“For Use in a Proceeding”
The discovery sought need not be available under the law of the foreign tribunal – Intel
The evidence sought need not be admissible under the law of the foreign tribunal – Brandi-Dohrn
From Whom Can Discovery be Obtained?
Non-parties to the foreign proceeding.
Parties to the foreign proceeding? What if the foreign tribunal has denied discovery? Again, Intel.
“Resides or is found”.
What is Obtainable?
Testimony under the rules of the foreign tribunal
A U.S. style deposition.
The Exercise of Discretion
The view of the foreign tribunal.
Admissibility of the evidence in the foreign tribunal
Discoverability of the evidence in the foreign jurisdiction – Application of Gianoli
The view of the foreign state – Schmitz v. Bernstein
Kaiser Group v. World Bank, 2011 WL 1753966 (D.C.Cir. April 28, 2011)
Intel v. Advanced Micro Devices, 542 US 241(US Supreme Court 2004)
Brandi-Dohrn v. IKB, 2012 WL 695541(2nd Cir. March 6, 2012)
Euromepa S.A. v. R. Esmerian, Inc., 154 F.3d 24 (2nd Cir. 1998)
In re GianoliAldunate (Application of Gianoli), 3 F.3d 54 (2nd Cir. 1993)