Perspective | Obtaining Evidence in the U.S. through 28 U.S.C. 1782 Procedure
Published:
2024-11-14
When it comes to obtaining evidence in the United States, many people often feel daunted. This is primarily because there is currently no bilateral judicial assistance treaty between China and the United States. Furthermore, although both the U.S. and China are signatories to the "Convention on the Taking of Evidence Abroad in Civil or Commercial Matters," the procedures outlined in the Convention are cumbersome and there is a significant chance that U.S. courts may refuse to apply it. However, U.S. law actually provides a procedure for assisting those engaged in litigation outside the U.S. to obtain evidence from within the U.S. This is outlined in 28 U.S.C. Section 1782(a). Once a federal court decides to initiate the Section 1782 evidence-gathering process, the applicant can utilize all the tools available under the Federal Rules of Civil Procedure to gather evidence. Below, this article will briefly introduce readers to this powerful tool for obtaining evidence in the United States.
When it comes to obtaining evidence in the United States, people often feel daunted. This is because there is currently no bilateral judicial assistance treaty between China and the United States. Moreover, although both the United States and China are parties to the "Convention on the Taking of Evidence Abroad in Civil or Commercial Matters," the procedures of the Convention are cumbersome and there is a high likelihood that U.S. courts will refuse to apply it. However, U.S. law actually provides a procedure for assisting those engaged in litigation outside the United States to obtain evidence from the U.S., which is Section 1782(a) of Title 28 of the U.S. Code. Once a federal court decides to initiate the Section 1782 evidence-gathering procedure, the applicant can utilize all the tools of the Federal Rules of Civil Procedure to gather evidence. Below, this article will briefly introduce this powerful tool for obtaining evidence in the United States.
According to 28 U.S.C. Section 1782(a), "The district court for the district in which a person resides or is found may order him to give testimony or statements, or to produce documents or other things for use in a foreign or international tribunal, including in a criminal investigation conducted before formal charges are made. The order may be made pursuant to a request from a foreign or international tribunal or upon the application of any interested person, and may direct that testimony or statements be given, or that documents or other things be produced, before a person designated by the court."
Based on the text, we can summarize the conditions under which a U.S. federal court initiates Section 1782: First, the person from whom evidence is sought must "reside" or be "found" within the jurisdiction of the federal district court; second, the evidence must be for use in a foreign "tribunal"; third, the applicant can be either the tribunal or an interested party. In addition, there are no other requirements to initiate Section 1782, which has been confirmed by U.S. Supreme Court precedent, but the court also has the discretion to exercise certain discretion.
1. "Reside" or "be found"
Determining whether a person or entity "resides or is found" within the court's jurisdiction is very similar to determining whether the court has personal jurisdiction over it, i.e., whether the individual or entity is a "resident" of the court's jurisdiction (having a permanent residence or establishing a principal place of business) or has a certain connection with the court's jurisdiction (ongoing business contacts or merely receiving service of process during a brief visit can suffice).
2. Evidence for foreign "tribunal proceedings"
The meaning of "foreign or international tribunal proceedings" has long been a subject of controversy in the United States, with the focus of the dispute being whether international arbitration institutions qualify as "tribunals." The rulings of various U.S. circuit courts of appeals are not uniform. In January 2020, the Northern District of California approved a request for evidence gathering submitted under Section 1782 by parties related to a case from the China International Economic and Trade Arbitration Commission. This was the first successful application of Section 1782 for evidence gathering in a Chinese arbitration case in the U.S., which is considered a milestone event for Chinese arbitration utilizing the U.S. evidence disclosure system to collect evidence. However, on June 13, 2022, the U.S. Supreme Court made a final ruling on this issue, determining that "foreign or international tribunals" only encompass adjudicative bodies established by governments or intergovernmental organizations, meaning they must be granted governmental authority by one or more countries to exercise their functions, thus excluding commercial arbitration tribunals (see ZF Automotive US, Inc. v. Luxshare, Ltd. and AlixPartners, LLP, et al. v. The Fund for Protection of Investors' Rights in Foreign States). On July 19, 2024, the U.S. Second Circuit Court of Appeals reiterated that the International Centre for Settlement of Investment Disputes does not possess governmental authority, even though the center is a permanent international organization established under the Convention on the Settlement of Investment Disputes, as its arbitration tribunal is constituted on a case-by-case basis, and the arbitrators are selected by the parties to the dispute, making its operational mechanism more akin to commercial arbitration and thus lacking governmental or intergovernmental attributes.
Some courts, including those in the Second and Third Circuits, believe that there must be a pending or at least urgent dispute to be resolved in the "proceeding" (see In re Letter of Request from Crown Prosecution Serv. of United Kingdom, In re Ishihari Chemical Co., and In re International Judicial Assistance (Letter Rogatory) for Federative Republic of Brazil). However, this position has not been universally accepted by all courts, as the Eleventh Circuit Court of Appeals believes that information disclosure can be authorized under Section 1782 in proceedings where liability has already been clearly established. The U.S. Supreme Court also addressed this issue in Intel Corp. v. Advanced Micro Devices, Inc. (hereinafter referred to as the "Intel case"), ruling that the "proceeding" of a foreign "tribunal" does not have to be "pending" or at least "urgent."
3. Interested parties
Section 1782 provides that "interested parties" can initiate the Section 1782 evidence-gathering procedure. The parties to a foreign or international proceeding are clearly "interested parties," but the scope of "interested parties" is broader than just the parties involved. In the Intel case, AMD filed an antitrust complaint against Intel with the European Commission and applied to a U.S. court to initiate the Section 1782 evidence-gathering procedure. Intel argued before the Supreme Court that the list of "interested parties" authorized to apply for judicial assistance under Section 1782(a) only includes "litigants, foreign sovereign states, and designated agents of those sovereign states," and does not include AMD, which is merely a complainant to the Commission and has been granted only "limited rights." The Supreme Court rejected Intel's argument, stating that AMD's complaint not only prompted the investigation but also that the complainant has the right to submit information for the consideration of the competition authority. If the Commission halts the investigation or dismisses the complaint, the complainant can bring a lawsuit in court. Given these participatory rights, AMD has a reasonable interest in obtaining judicial assistance and thus qualifies as an "interested party" under any fair interpretation of the term.
4. No other requirements
In the Intel case, Intel objected to various additional conditions imposed by the U.S. court when accepting the application to initiate the Section 1782 procedure, claiming that "if a foreign court or 'interested party' is not legally permitted to obtain evidence in the foreign jurisdiction, then the Section 1782 procedure cannot be initiated"; "the applicant must prove that the Section 1782 procedure can only be initiated if U.S. law allows for evidence disclosure in similar domestic litigation." However, the Supreme Court rejected Intel's absolute limitations on the applicability of the statute, stating that as long as the three conditions explicitly stated in Section 1782 are met, an application to initiate Section 1782 can be made.
5. Discretion
Merely meeting the above requirements is not sufficient to ensure that a U.S. court will approve an application for evidence disclosure. The ruling in the Intel case clarified that federal district courts have discretion when reviewing applications for evidence disclosure, and the court has certain rights to exercise discretion on whether to initiate the Section 1782 procedure: "The wording of Section 1782(a), confirmed by its context, leads to the conclusion that the provision authorizes but does not require federal district courts to provide assistance to the complainant in proceedings before a committee that leads to a decisive ruling." In the Intel case, the Supreme Court outlined four factors to guide district courts in exercising discretion under Section 1782: (1) whether the person from whom disclosure is sought is a participant in the foreign proceeding, in which case the foreign court may order disclosure itself; (2) the extent to which the foreign court accepts U.S. judicial assistance; (3) whether the evidence-gathering request attempts to circumvent foreign restrictions on obtaining evidence; and (4) whether the request is overly intrusive or burdensome.
In summary, the evidence disclosure request stipulated in Article 1782 undoubtedly provides non-U.S. lawyers with a powerful legal tool, greatly enhancing the evidence collection process and striving for a more favorable position in litigation in their home courts, provided that it is carefully designed and properly executed. However, given that the court has broad discretion when reviewing evidence disclosure applications, lawyers must think carefully when submitting applications to the court in order to achieve the best results in a complex legal environment.
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