The history and purpose of section 1782: will courts permit discovery into documents located abroad?

For 72 years, the US has permitted foreign parties access to US discovery procedures for use in foreign proceedings. Through 28 USC §1782, parties with an interest in foreign proceedings can seek documents and testimony from entities located in the US “in accordance with the federal rules of civil procedure”—that is, the same rules that govern discovery in US district courts (and the case law interpreting them).

However, despite the availability of this procedure for more than 70 years, courts differ about the basics of scope and procedure for approaching section 1782 discovery.

For example, one important question, especially for foreign parties who may take advantage of 1782 discovery, is what kind of discovery can actually be obtained under section 1782?

Different approaches

Several circuits agree that section 1782 discovery is just as broad as discovery under the Federal Rules of Civil Procedure, but this question is not settled. Examination of the rulings that apply under section 1782, with an eye towards those that address the purpose and history of the statue, informs what discovery different courts will permit under section 1782.

Section 1782 of Title 28  of the US Code (28 USC §1782), first codified in 1948, enables parties with an interest in foreign litigation to access the broad discovery procedures in US courts. Interpreting the then six-decade-old statute, the Supreme Court in Intel Corp v Advanced Micro Devices (2004), found that section 1782 was designed to assist litigants in gathering evidence, through discovery, for use in foreign tribunals.

And, according to Federal Rule of Civil Procedure 26(b)(1), parties in US courts “may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defence and proportional to the needs of the case”.

Despite the appeal of getting information from an adversary which would not typically be available in more restrictive non-US courts, section 1782 jurisprudence remains unsettled. US courts differ about the basics of scope and procedure for taking 1782 discovery, with some agreeing that 1782 discovery is just as broad as discovery under the federal rules, with others taking more restrictive views.

Restrictive views

For example, the Ninth Circuit, which includes the State of California, where many non-US companies have US locations, found in In re Letters Rogatory from Tokyo Dist. Prosecutor’s Office, Tokyo, Japan (1994) that “the clear language of §1782(a)” binds those interpreting it to the federal rules.

However, that same court in United States v Sealed 1 (2004) indicated that although section 1782 “authorises” discovery, the district court does not have to allow it. Ultimately, in the Ninth Circuit, even though section 1782 discovery can be as broad as the federal rules, judges have discretion to restrict that discovery, within reason.

The Northern District of California, a district court in the Ninth Circuit, insinuated in In re Varian Med. Sys. Int’l AG (2016) that a judge’s discretionary decision should tend to “err on the side of permitting discovery”.

Further examining the scope and history of section 1782, the Second Circuit, which includes New York, has also set some reasoned guidelines on the otherwise broad discretion of individual judges.