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Section 1782’s Ever-Expanding Discovery for Foreign Litigation and ADR

Posted on November 7th, 2012

Title 28 U.S.C. Section 1782 is a federal law allowing a person or entity who is involved in foreign litigation to apply to the American court system for discovery against U.S. citizens or corporations to be used in the foreign litigation. The discovery could include electronic data, documents or testamentary evidence.

The language of the statute calls for discovery to be available under the discretion of the American court system in proceedings before a “foreign tribunal,” which definition the U.S. Supreme Court expanded to include not only court proceedings but administrative and quasi-administrative proceedings in both the public and private sector, as well. Intel v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004).

This expansion into arbitration has been extended further in the recent case In re Application of Mesa Power Group, 2012 WL 2886827 (S.D. Fla. July 13, 2012). The discovery application was granted ex parte to Mesa Power, which was involved in NAFTA arbitration alleging the Ontario government precluded Mesa Power from obtaining government contracts while allowing other competitors. The ex parte discovery application was granted against a third party competitor, NextEra, which Mesa believed had information regarding its own secured contracts with the Ontario government.

After receiving notice of the ex parte order granting discovery to proceed, NextEra claimed the requests were unduly burdensome. The district court disagreed and noted that for a successful objection of undue burden, litigants must offer precise discovery objections rather than an all-or-nothing mentality.

Our firm provides a wide range of plaintiff eDiscovery services for domestic and international litigation, including foreign language translation, automated issue coding and eDiscovery software. Call us directly for a consultation at 888-313-4457.

ILS – Plaintiff Electronic Discovery Firm

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