U.S. Courts Continue Reluctance Toward Foreign Discovery


25 Sep 2019
Reprinted with permission.

Morrison & Foerster partner Alexander Lawrence authored an article for Law360 covering the use of U.S. Code Title 28, Section 1782, to obtain discovery in the United States for use in proceedings in other countries.

The use of discovery under Section 1782 is on the rise, Alexander writes, as “discovery outside of the United States is much more limited,” and “U.S.-based law firms provide a possible end-run around these limits.” However, he notes that despite the increase of Section 1782 applications, “the trend has been one of substantial headwinds against those seeking to use Section 1782 against U.S.-based law firms.”

Alexander examines a recent decision from Judge George Daniels of the U.S. District Court for the Southern District of New York in In re Hulley Enterprises that highlights the reluctance to accept Section 1782 applications, and suggests that courts “will likely continue to take a jaundiced view towards using Section 1782 to obtain client documents from U.S.-based law firms” in the future. Alexander recognizes the risk of these applications being granted, however, and he advises that U.S.-based law firms take steps to minimize the risks of discovery.



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