American discovery for foreign litigation
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AMERICAN DISCOVERY FOR FOREIGN LITIGATION PowerPoint PPT Presentation


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AMERICAN DISCOVERY FOR FOREIGN LITIGATION. The Federal statute:28 USC 1782(a).

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AMERICAN DISCOVERY FOR FOREIGN LITIGATION

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American discovery for foreign litigation

AMERICAN DISCOVERY FOR FOREIGN LITIGATION


The federal statute 28 usc 1782 a

The Federal statute:28 USC 1782(a)

  • “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,…”


What proceedings

What “proceedings”?

  • Courts – civil and criminal

  • Administrative agencies

  • The European Commission (a “first instance decision maker”)

  • “Criminal investigations conducted before formal accusation.”

  • Arbitrations – Kaiser Group v. World Bank


Who may seek discovery

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

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

“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

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

What is Obtainable?

  • Documents

  • Testimony under the rules of the foreign tribunal

  • A U.S. style deposition.


The exercise of discretion

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

  • Reciprocal discovery


Case citations

Case citations

  • 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)

  • Schmitz v. BernstienLiebhard & Lifshitz LLP, 376 F.3d 79 (2nd Cir. 2004)


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