Author: Tyler B. Robinson*
Published: December 2011
Section 1782 of Title 28 of the United States Code affords federal district courts in the United States discretion to order persons “resid[ing]” or “found” in the United States to give testimony or produce documents or other things “for use in a proceeding in a foreign or international tribunal . . . upon the application of any interested person.” Section 1782 is a powerful tool – broadly available to foreign and international tribunals, foreign litigants, and any other “interested person” – to obtain discovery of documents and testimony from individuals or business entities located in the United States. The statute’s principal objective, as illuminated by the United States Supreme Court, is “to assist foreign tribunals in obtaining relevant information that the tribunals may find useful but . . . cannot obtain under their own laws.” A majority of U.S. courts have held that at least some species of international arbitral tribunals qualify as “a foreign or international tribunal” within the meaning of § 1782, thus making the construction and application of § 1782 in the U.S. courts a topic of considerable interest among practitioners of international arbitration.
In this latter connection, many courts have expressed doubts about whether § 1782 authorizes a U.S. court to order a person “residing” or “found” in the United States to produce documents within that person’s possession, custody or control that are located outside the United States. These courts, some of them …
*Tyler B. Robinson is a partner at Simpson Thacher & Bartlett LLP.