Pursuing and Responding to Discovery Requests Under 28 U.S.C. § 1782
As discussed in a previous blog post, an interested party in a foreign or international proceeding may apply to a United States District Court for discovery from an individual or corporation who resides or is found in the district. This blog describes the procedural steps for pursuing or responding to discovery requests under 28 U.S.C. § 1782. The operative language of section 1782(a) provides:
The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court.
Applying for a Subpoena Pursuant to 28 U.S.C. § 1782
As an initial matter, section 1782 is limited to two forms of discovery: (1) oral testimony; and (2) production of documents or things. Secondly, a party pursuing discovery under section 1782 must do so in the district where the target of the discovery “resides or is found,” which may or may not be convenient for the proponent, and almost certainly requires the assistance of local counsel. Next, the proponent must decide whether to proceed by letter rogatory or by application. The former involves a formal request from a foreign court for judicial assistance. The procedure for obtaining a letter rogatory will be governed by the local law of the issuing jurisdiction. In the alternative, the discovery proponent may proceed without a letter rogatory by applying directly to a U.S. district court by initiating a new case for the limited purpose of obtaining discovery. Typically, the requesting party would make an ex parte application for issuance of a subpoena pursuant to 28 U.S.C. § 1782, supported by a memorandum of law and evidence to satisfy the statutory requirements, i.e., that the discovery target resides or is found in the district, the existence (or at least contemplation) of foreign or international proceedings, and the requisite interest.
In addition, because section 1782 grants the court discretion whether to issue a subpoena (i.e., the court “may order” discovery), the proponent must also address the discretionary factors identified by the Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264-65 (2004): (1) whether the discovery target is a participant in the foreign proceeding; (2) the nature of the foreign tribunal, the character of the foreign proceedings and the receptivity of the foreign authority to U.S. judicial assistance; (3) whether the discovery request conceals an attempt to get around foreign restrictions on proof-gathering; and (4) whether the request is unduly burdensome. Upon review of the application, the district court will determine whether the requesting party meets the requirements under section 1782, and then either grant or deny the application. If the application is granted, the district court will permit the party to serve the responding party with a subpoena.
Responding to a Subpoena for Discovery Under 28 U.S.C. § 1782
A party who receives a subpoena under 28 U.S.C. § 1782 has several options for how to respond. As a practical matter, the party responding to the subpoena should review the subpoena and determine whether simply complying without objection might be the easiest and most efficient response. However, more often than not, the target of the subpoena, whether a third party or a participant in the foreign or international proceeding, has compelling reasons to resist, or at least try to limit, compliance with the subpoena. As an alternative to pursuing a formal legal challenge, a subpoena target should always consider “meeting and conferring” with the issuing party to try and reach an agreement on a mutually acceptable, and presumably narrowed, response to the subpoena. Sometimes disputes can be avoided and burdens minimized just by ascertaining what types of information the requesting party is really seeking. Limiting the scope of the requested discovery by agreement may avoid unnecessary motion practice, and conserve resources for all concerned.
If unable to reach agreement, the responding party has the following options:
The responding party may submit objections, which may, in turn, provoke a motion to compel from the requesting party, especially if the responding party refuses to provide any of the requested discovery.
Motion to Compel
If the requesting party files a motion to compel, the responding party will have an opportunity to oppose the motion. The district court will decide whether to compel production of documents the requesting party is seeking by applying the substantive standards prescribed by section 1782. Thus, the responding party may argue that the requesting party has not met one or more of the requirements for discovery under section 1782 and/or that the court should exercise its discretion to deny the request. Unlike other discovery decisions, a decision under section 1782 is immediately appealable.
Motion to Quash
The responding party (or the other party in the foreign or international proceeding) may file a motion to quash the subpoena in the district court that issued the subpoena, arguing that the discovery request does not satisfy the statutory requirements of section 1782 as set forth above, or that the court should exercise its discretion to deny the request under the balancing standard set forth in Intel v. AMD. The court’s decision on a motion to quash is immediately appealable as well.
Motion for Protective Order
Even if the discovery request satisfies the requirements for issuance of a subpoena, the responding party may seek entry of a protective order. Section 1782 specifically preserves “any applicable legal privilege.” In addition, the court may limit the scope of discovery to protect the responding party from undue burden, including by shifting the cost of compliance to the requesting party.
To the extent the court orders discovery, it may prescribe the manner in which the testimony or statement shall be taken, and the document or other thing produced. If the court does not specify, then the discovery shall be conducted in accordance with the Federal Rules of Civil Procedure. Throughout the procedural steps described in this post, the requesting responding parties should stay apprised of the growing substantive jurisprudence developed under section 1782 for guidance in making strategic decisions.