Second Circuit Resolves Important Questions Regarding Discovery In Aid Of Foreign Litigation Under 28 U.S.C. § 1782

For more than a half a century, the United States has provided a powerful tool to obtain U.S. style discovery in aid of foreign proceedings. For years the statute was seldom utilized. But, in recent years, there has been a considerable uptick in its use.

Under 28 U.S.C. § 1782, a federal district court may grant an applicant the authority to issue subpoenas under Rule 45 of the Federal Rules of Civil Procedure to obtain documents or testimony. An applicant needs to show three things:

(1) the applicant is an “interested person” in a foreign proceeding;

(2) the proceeding is before a foreign “tribunal,” which could include actual or contemplated judicial or other governmental proceedings; and