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AMERICAN DISCOVERY FOR FOREIGN LITIGATION

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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  1. AMERICAN DISCOVERY FOR FOREIGN LITIGATION

  2. 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,…”

  3. 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

  4. 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.

  5. 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.

  6. “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

  7. 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”.

  8. What is Obtainable? • Documents • Testimony under the rules of the foreign tribunal • A U.S. style deposition.

  9. 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

  10. 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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