There is an excellent, thorough, and relatively recent discussion of the issue in a student note by Peter Metis.\u27 These remarks supplement and update that discussion

Hauser, Gregory F.

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SECTION 1782 OF TITLE 28 (U.S. CODE): IS THEREA DISCOVERABILITY REQUIREMENT?Gregory F. HauserThere is an excellent, thorough, and relatively recent discussion ofthe issue in a student note by Peter Metis.' These remarks supplement andupdate that discussion. Courts continue consistently to reject anydiscoverability inquiry in cases where the request for assistance undersection 1782 comes from a foreign tribunal, reasoning that the requestingauthority is better aware of its own discovery rules and procedures andpresuming that they have already been considered and applied.2The federal courts have reached differing results, however, whensuch a request comes directly from a party to a foreign litigation.The Courts of Appeals for the First and Eleventh Circuits haveheld clearly that a threshold requirement for the grant of such a requestunder section 1782 is that the evidence sought must be discoverable underthe law and procedures of the foreign tribunal.,The justifications for the requirement are to avoid disadvantage toa United States party vis a vis an opposing party when they are litigating ina country with limited pre-trial discovery and to prevent any attempt tocircumvent foreign law and procedure and thereby also any offense to aforeign tribunal.4The Courts of Appeals for the Third and District of ColumbiaCircuits have not directly held that there is such a discoverabilityRemarks by Gregory F. Hauser, Walter, Conston, Alexander & Green, P.C., NewYork City.1. Peter Metis, International Judicial Assistance: Does 28 U.S.C. § 1782 Contain anImplicit Discoverability Requirement?, 18 FORDHAM INT'L L.J. 332 (1994).2. See e.g., United States v. Morris, 82 F.3d 590, 592 (4th Cir. 1996); In re LetterRogatory from the First Court of First Instance in Civil Matters, Caracas, Venezuela, 42 F.3d308, 310-11 (5th Cir. 1995).3. See In re Application of Asta Medica, S.A., 981 F.2d 1, 5-7 (1st Cir. 1992); In re LoKa Chun v. Lo To, 858 F.2d 1564 (1 1th Cir. 1988); In re Request for Assistance from Ministryof Legal Affairs of Trinidad and Tobago, 848 F.2d 1151, 1156 (1lth Cir. 1988), cert. denied subnom. Azar v. Minister of Legal Affairs, 488 F.2d 1005 (1989).4. See, e.g., In re Application ofAsta Medica, S.A., 981 F.2d at 5-7.486 ILSA Journal of Int'l & Comparative Lawrequirement, but have in dicta discussed the requirement with apparentapproval.-The district court for the Eastern District of Pennsylvania, evenwhile acknowledging that there was no direct Third Circuit ruling, hasrecently followed the apparent dictates of the Third Circuit dicta and founda discoverability requirement.6 Indeed, the discoverability requirement hadoriginated in another decision by that same district court.7The Ninth Circuit has gone no further than to acknowledge theseriousness of the policy concerns underlying the discoverabilityrequirement, but the district court for the Central District of California hasfirmly imposed such a requirement?The Fifth Circuit has also discussed the decisions requiring adiscoverability finding with apparent approval,'0 but district courts in thatcircuit have split on whether the dicta is binding and thus on whether sucha requirement should be imposed." In a case before the Federal Circuitthat did not reach the issue, a dissenter argued at length for thediscoverability requirement. 12The Court of Appeals for the Second Circuit, however, has takenthe clear opposing stand that, even when a request under section 1782 isnot from a foreign tribunal itself, there need be no discoverabilty5. See In re Letter of Request from the Crown Prosecution Service of the UnitedKingdom, 870 F.2d 686, 692-93 (D.C. Cir. 1989); John Deere Ltd. v. Sperry Corp., 754 F.2d132, 136 (3d Cir. 1985); see also Euromepa S.A. v. R. Esmerian, 51 F.3d 1095, 1099 (2d Cir.1995) (noting that neither of the Third or D.C. Circuits had yet actually held that a finding ofdiscoverability was a requirement for the grant of a private litigant's request under section 1782);Foden v. Gianoli, 3 F.3d 54, 60 n.1 (2d Cir. 1993) (same), cert. denied sub nom. Foden v.Aldunate, 510 U.S. 965 (1993).6. In re Application of Mats Wilander, No. 96 Misc. 98, 1996 U.S. Dist. LEXIS 19357,at *7-*11 (E.D. Pa. July 24, 1996).7. Peter Metis, Note: International Judicial Assistance: Does 28 U.S. . § 1782 Containan Implied Discoverability Requirement?, 18 FORDHAM INT'L L.J. 332, 352-54 (1994); see SelasCorp. v. Electric Furnace Co., 88 F.R.D. 75 (E.D. Pa. 1980); but see Foden. 3 F.3d at 61 n.3(disputing this interpretation of the Pennsylvania case).8. See Okubo v. Reynolds, 16 F.3d 1016, 1021 (9th Cir. 1994).9. See In re Application for an Order for Judicial Assistance in a Foreign Proceeding inthe High Court of Justice, Chancery Division, England, 147 F.R.D. 223, 226 (C.D. Cal. 1993).10. In re Letter Rogatory, 42 F.3d at 310-11.11. Cf., In re Application of Gert Duizendstraal, No. 3:95-MC-150-X, 1997 U.S. Dist.LEXIS 16506, at *4-*7 (N.D. Tex. April 16, 1997) (finding no discoverability requirement) withIn Re Trygg-Hansa Ins. Co., 896 F. Supp. 624, 626-27 (E.D. La. 1995) (finding that court mustreview whether the evidence sought was discoverable in the foreign jurisdiction).12. See In Re Jenoptik AG, 109 F.3d 721, 724-26 (Fed. Cir. 1997).[Vol. 4:485Hausershowing. 3 The request should be denied only if there is "authorative proofthat a foreign tribunal would reject evidence obtained with the aid ofsection 1782," such authoritative proof entailing "judicial, executive orlegislative declarations that specifically address the issue of evidencegathered under foreign procedure." 4 The bases for the Second Circuit'sposition are the absence of any discoverability requirement in the languageof the statute as well as its history and purposes." In response to theconcerns underlying the discoverability requirement, the Second Circuithas noted that "any and all other limitations upon discovery that would beavailable under Fed. R. Civ. P. 26 . ..are also available under section1782(a)" and that concerns about lack of reciprocity may be addressed is a"closely tailored discovery order. "16 In an additional, indirect response tocourts that have felt allowing discovery in the United States not allowed inthe foreign jurisdiction would offend the foreign tribunal, the SecondCircuit noted a British litigation in which the House of Lords on appealvacated an injunction imposed by a lower court against such discovery inthe United States, finding that the discovery did not interfere with Britishdue process.' 7At least one district court has apparently followed the SecondCircuit's suggestion and conditioned the requested discovery onreciprocity.' 8  Thus, discoverability is not irrelevant but only oneconsideration in the exercise of the discretion of the district court, whichremains the ultimate arbiter.The Seventh Circuit has not yet considered the issue, but thedistrict court for the Northern District of Illinois has twice taken theposition that, since the statute states no discoverability requirement, adecision on a section 1782 request from a foreign litigant is entirely amatter of the district court's discretion.' 9Two other intriguing issues have arisen in section 1782 cases. TheCourt of Appeals for the Ninth Circuit has declined to adopt or to try to13. See Esses v. Hanania, 101 F.3d 873, 876 (2d Cir. 1996); Euromepa S.A. v. R.Esmerian Inc., 51 F.3d 1095, 1098-1101 (2d Cir. 1995); Foden v. Gianoli, 3 F.3d 54, 58-61(2nd Cir. 1993), cert. denied sub nom. Foden v. Aldunate, 510 U.S. 965 (1993).14. Esmerian, Inc., 51 F.3d at 1095, 1100; see also Hanania, 101 F.3d at 876-77.15. See id.; Foden, 3 F.3d at 58-60.16. Esmerian, Inc., 51 F.3d at 1100 n.4, 1101.17. See id. at 1100 n.3.18. See id. Hanania, 101 F.3d 873 at 876.19. See Elm Energy and Recycling (U.K.) Ltd. v. Basir, No. 96 C 1220, 1996 U.S. Dist.LEXIS 15255, at *25-*29 (N.D. III. Oct. 9, 1996); Verson v. Allied Products Corp., No. 87 C7549, 1987 U.S. Dist. LEXIS 8981, at *2-*3 (N.D. I11. Sept. 25, 1987).19981488 ILSA Journal of Int'l & Comparative Lawenforce on a foreign court an exclusionary rule with respect to evidenceobtained for a foreign criminal prosecution pursuant to section 1782 butallegedly in violation of due process,2 although a New York district courtin an earlier, similar case had ordered a foreign prosecutor to return suchevidence, basing its authority to do so on a conclusion that the prosecutorhad submitted to the jurisdiction of the United States court by submittingthe request for evidence.2 ' The distinctions between the two decisions werethat, in the Ninth Circuit case, the evidence had already been submitted tothe foreign court and, even if the foreign prosecutor had submitted itself tothe jurisdiction of the United States court, the foreign court had not. =Finally, a recent dispute raised the issue whether section 1782could be used to reach documents in the possession or control of a UnitedStates entity but located outside the United States. In the district court, therequest was denied on the ground of privilege, but the Court of Appealsruled that the privilege had been waived and remanded for consideration ofthe extraterritorial issue.? Before the district court ruled, however, theapplication was withdrawn with prejudice.20. See Okuba v. Reynolds, 16 F. 3d 1016, 1021 (9th Cir. 1994).21. See In re Letter of Request from the Supreme Court of Hong Kong, 138 F.R.D. 27,32-33 (S.D.N.Y. 1991).22. See Okuba, 16 F. 3d at 1021.23. See Chase Manhattan Corp. v. Sarrio, S.A., 119 F.3d 143 (2d Cir. 1997); see also Inre Application of Sarrio S.A., No. M 9-372, 1995 U.S. Dist. LEXIS 14822 (S.D.N.Y. 1995).[Vol. 4:485

Section 1782 Of Title 28 (U.S. Code): Is There A Discoverability Requirement?

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Section 1782 Of Title 28 (U.S. Code): Is There A Discoverability Requirement?

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