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

For many decades, section 1782 has enabled foreign parties to seek discovery in the US but unsettled jurisprudence around the act has led to confusion among different courts, as Lionel Lavenue, Ben Cassady and Joseph Myles of Finnegan report.

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?