Discovery in the US in Aid of Proceedings Held Outside the US

by Proskauer Rose LLP with Practical Law Litigation

A Practice Note examining several common methods for obtaining discovery in the US in aid of a non-US proceeding. This Practice Note discusses the voluntary provision of evidence, compelling discovery through diplomatic procedures like letters rogatory, and the use of an application to a federal district court under 28 U.S.C. § 1782. It provides detailed guidance on Section 1782 applications, including the key statutory requirements and the discretionary factors that courts weigh when deciding whether to grant discovery requests. This Note also addresses the scope of what constitutes a "foreign or international tribunal" under the statute, a critical consideration for parties seeking evidence, particularly in the context of international arbitration. Additionally, this Note outlines the procedural steps for commencing a miscellaneous action to obtain a Section 1782 order, compliance with the Federal Rules of Civil Procedure (FRCP), and the process for responding to such an order.