United States federal and state laws allow foreign litigants to seek an order from a U.S. court requiring a person within the court’s jurisdiction to provide testimony or produce documents for use in a non-U.S. proceeding. These procedures can be used to obtain evidence even where the foreign tribunal has no jurisdiction over the party from whom the evidence is sought.
Requests For Discovery In United States District Courts
28 United States Code Section 1782(a) allows a U.S. federal district court to order a person residing or found in that district’s jurisdiction to give testimony and/or produce documents or physical evidence “for use in a proceeding in a foreign or international tribunal” if certain criteria are met. A Section 1782 application may be made by a party to the foreign or international proceeding or by the foreign or international tribunal itself.
The U.S. Congress intended this statute to provide efficient means to assist participants in international litigation and to encourage foreign countries by example to provide similar means of assistance to U.S. courts. In recent years, Section 1782 has been extended in some federal courts to private (non-investment-treaty) international arbitration tribunals seated outside the United States.
The U.S. Supreme Court has enunciated four factors district courts may consider in ruling on a Section 1782 petition:
- whether “the person from whom discovery is sought is a participant in the foreign proceeding,” in which case “the need for § 1782(a) aid generally is not as apparent as it ordinarily is when evidence is sought from a nonparticipant in the matter arising abroad”;
- “the nature of the foreign tribunal, the character of proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance”;
- “whether the § 1782(a) request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States”; and
- whether a request is “unduly intrusive or burdensome.”
A Section 1782 application consists of the application or petition to the court, a memorandum stating the reasons why the statutory have been met and the Supreme Court factors satisfied, and a proposed order attaching the subpoena or subpoenas the applicant is requesting to have issued. Applications may be made on an ex parte basis to prevent destruction or concealment of evidence, but the party from whom discovery is sought may challenge the order by filing a motion to quash the order raising objections as to why the discovery should not be granted. The foreign proceeding for which relief is sought under Section 1782 need not be pending or imminent but must be within reasonable contemplation.
The decision whether to grant a Section 1782 application is entirely within the district court’s discretion. When a court does grant a Section 1782 application, the Federal Rules of Civil Procedure apply to the taking of evidence in the United States. Thus, a “person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.”
Requests for Discovery In Local U.S. State Courts
Each state in the United States has its own local laws concerning the taking of discovery within its jurisdiction. The tenants for the taking of discovery in aide of a foreign proceeding are similar to those mandated by U.S. federal law.
Discovery in Aide of a Foreign Proceeding In New York State Courts.
Rule 328(b) of the New York Civil Practice Law and Rules permits service of discovery requests in connection with a proceeding in a tribunal outside the state to be made within New York without a court order by stipulation or agreement of the parties.
However, if the serving party does not believe the party from whom disclosure is sought will cooperate without compulsion from a New York court, he may rely on (i) Rule 3102(c) which provides for the taking of testimony to aide in bringing an action, to preserve information or to aid in arbitration prior to the commencement of the foreign action, or, (ii) Rule 3102(e) after the foreign action has been commenced. New York court generally hold that there must be a mandate from a foreign tribunal to permit the commencement of a special proceeding for discovery in New York under Section 3102(e).
Unlike Section 1782, Rule 3102(c), and, by corollary 3102(e), expressly allow for the taking of testimony and discovery to preserve or gather evidence to aide in the commencement of a future litigation or arbitration.
If the person from whom disclosure is sought is served with a New York court order directing the requested disclosure or with a subpoena whose use the court has directed, disobedience could be considered contempt of court and may be punishable under law by fine or imprisonment.
Discovery in Aide of a Foreign Proceeding In California Courts.
Rule 2029.350 of the California Code of Civil Procedure allows a party to a proceeding in a foreign jurisdiction, which includes a “foreign nation,” that is in possession of a subpoena from the foreign court to issue a California subpoena that incorporates the terms of the foreign subpoena.
California also offers the possibility of obtaining a court-issued subpoena. Cal. Code of Civ. P. § 2029.300. The petitioner must include the original or a true and correct copy of the foreign subpoena to the clerk of the superior court in the county in which discovery is sought to be conducted in the state. The petitioner must also submit a form application and pay a $30 fee.
California courts provide an alternative jurisdiction to U.S. district courts but, unlike New York courts, do not necessarily provide for any added benefit over the federal forum.
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The United States federal and individual state governments have made their courts available to foreign litigants who need discovery from individuals and entities located in the United States. The use of these applications has grown with the globalization of the world’s economy and the increase cross-border disputes. When a foreign party finds itself in need of evidence from a person or entity located in the United States, the foregoing statutes and procedures can be powerful tools for obtaining evidence and shifting leverage in favor of the foreign party using them.
 The relevant text of the statute provides:
[t]he 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.
 See Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76, 80 (2d Cir. 2012); Euromepa, S.A. v. R. Esmerian, Inc., 154 F.3d 24, 28 (2d Cir. 1998).
 See Servotronics, Inc. v. Boeing Co., 954 F.3d 209 (4th Cir. 2020) (holding that UK arbitral panel was “foreign or international tribunal”); In re Abdul Jameel Latif Transp. Co. Ltd. v. FedEx Corp., 939 F.3d 710 (6th Cir. 2019) (holding that a Dubai arbitral panel qualified as a “foreign or international tribunal”); HRC-Hainan Holding Co., LLC v. Yihan Hu, No. 19-MC-80277-TSH, 2020 WL 906719, at *7 (N.D. Cal. Feb. 25, 2020) (holding that a proceeding before a China International Economic Arbitration Commission (CIETAC) panel qualified for assistance under the law).
 Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264–65 (2004).
 Intel Corp., 542 U.S. at 259.
 28 U.S.C. § 1782(a).
 See Matter of Welch, 706 N.Y.S.2d 597 (Sup. Ct., New York Co. 2000); Matter of Deloitte, Haskins & Sells, 552 N.Y.S.2d 1003 (Sup. Ct., New York Co. 1990).