U.S. Discovery Procedures May Be Used for Foreign Administrative and Court Proceedings
American litigation is often more expensive than litigation in other countries because of the extensive pre-trail discovery
procedures American law provides. Many litigants do not realize that federal courts are authorized to provide the same broad
discovery for use in foreign proceedings. A recent decision by the U.S. Supreme Court, Intel Corporation v. Advanced Micro Devices [fn1], confirmed the broad availability of US discovery procedures for foreign proceedings, but at the same time imposed important
limitations intended to deter abuse.
The case arose from AMD’s request for discovery in order to provide the information to the European Commission investigating
alleged anticompetitive conduct by Intel. (The EC investigation was commenced, at least in part, based on a complaint by AMD.)
The statute invoked by AMD ("Section 1782")[fn2] permits federal courts to order document discovery and deposition testimony "for use in a proceeding in a foreign or international
tribunal" upon the request of any "interested person."
The Supreme Court’s decision addressed four principal issues and largely confirmed AMD’s broad interpretation of the statute:
There is no "foreign discovery requirement": Lower appellate courts had expressed conflicting views on whether Section 1782 permits US discovery for use in countries
where similar discovery is not available. The Supreme Court resolved this conflict by holding that nothing in the text of
the statute or in the legislative history limits its availability to situations where the US discovery sought is similar in
kind to the discovery available in the foreign country at issue.
"Any interested person" may request assistance under Section1782(a): The Supreme Court held that Section 1782 permits discovery requests by "any interested person," which it defined as a person
with a "reasonable interest in obtaining judicial assistance." The Court rejected Intel’s argument that "any interested person"
should be limited to actual litigants in the foreign proceeding. (AMD was not a party to the EC investigation, even though
its complaint had played some role in the EC’s decision to open an investigation.)
"Tribunal" means a "first-instance decision maker": Section 1782 is designed to assist those involved in a "foreign or international tribunal." With many types of legal, quasi-legal,
and administrative proceedings in foreign jurisdictions, the Supreme Court deemed it prudent to provide guidance on what kinds
of proceedings qualified as such. The Court ruled that a body acting as a "first-instance decision maker" fulfilled the requirements
of a "tribunal."
The proceedings need not be "pending": The Court rejected Intel’s argument that Section 1782 is limited to "pending" proceedings. The Court held that a "proceeding
or investigation," of a "criminal, civil, administrative, or other nature" qualifies under Section 1782 whenever a reviewable,
dispositive ruling is within "reasonable contemplation."
Significantly, the Supreme Court noted several factors that district courts should consider when evaluating a Section 1782
request. We expect these factors will be heavily relied on by those seeking to limit the reach of Section 1782:
- Whether the applicant for aid is a participant in the foreign proceeding. The Court noted that for participants in foreign
proceedings, such a foreign tribunal would presumably be able to order such participants to produce evidence. On the other
hand, Section 1782 assistance may be the only method available to gather evidence from nonparticipants, as the foreign tribunal
may not be able to exercise jurisdiction over such parties.
- The nature of the foreign tribunal, the character of the proceedings, and the receptivity of the foreign government, court
or agency to US federal court judicial assistance.
- Whether the request is an attempt to circumvent the evidence gathering restrictions or policies of that foreign jurisdiction
or the United States.
- Whether the request is unduly intrusive or burdensome.
While extensive, the Supreme Court’s decision did not resolve several important issues relating to Section 1782 requests:
- When, if ever, will it be appropriate to order discovery from a party to a foreign proceeding if the foreign tribunal has
not requested the information and does not permit comparable discovery within its jurisdiction?
- What is the proper scope for such a discovery request? Will reciprocal discovery be required?
- Will third parties with relevant information be compelled to produce relevant information at the request of parties to the
proceedings? What limitations, if any, will be imposed on such requests?
- Will third parties with relevant information be compelled to produce relevant information at the request of parties to the
proceedings? What limitations, if any, will be imposed on such requests?
- How much attention a federal court should pay to a foreign entity’s own view of its "tribunal" or "non-tribunal" status. In
the instant case, the Court apparently ignored the European Commission assertions that it was not a "tribunal," a result that
seems strange in view of the fact that Congress intended Section 1782 to improve international cooperation.
- Whether discovery should still be permitted when a private party seeking discovery would not be entitled to that discovery
both under foreign and under federal law in analogous circumstances. The dissenting opinion pointed out that the Federal Rules
of Civil Procedure has limited provisions for nonlitigants to obtain certain discovery, and are designed to avoid discovery
battles by firms simply seeking information from competitors.
Footnotes
1: __ U.S. __ (2004), 2004 U.S. LEXIS 4570
2: 28 U.S.C. 1782(a)
