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Posted: January 5, 2015

District Courts Can Order Discovery in Support of Foreign Magistrate’s Investigation

On December 12, 2014, the Second Circuit issued a decision in In Re Application for an Order Pursuant to 28 U.S.C. § 1782 to Conduct Discovery for Use in Foreign Proceedings, 14-2807-CV, affirming the district court’s power to order discovery in support of a foreign criminal investigation. The decision in In Re Application for an Order is one on an appeal from the SDNY, not the EDNY, we report it here because of its general applicability and because it is, in the Second Circuit’s view, a case of first impression.

The Second Circuit explained:

A district court is authorized to grant a § 1782 request where: (1) the person from whom discovery is sought resides (or is found) in the district of the district court to which the application is made, (2) the discovery is for use in a proceeding before a foreign or international tribunal, and (3) the application is made by a foreign or international tribunal or any interested person.

. . . Section 1782 of Title 28 reads, in pertinent part, as follows:

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.

28 U.S.C. § 1782(a) (emphasis supplied).

The statute is the product of Congress’s efforts, over the past 160 years, to provide judicial assistance in gathering evidence for use in foreign tribunals. The goals of the law are to provide equitable and efficacious discovery procedures in American courts for the benefit of tribunals and litigants involved in litigation with international aspects while encouraging foreign countries by example to provide similar means of assistance to our courts. The statute’s precise scope—as well as its text—has evolved over time. . . .

. . .

Congress’s most recent textual change, in 1996, cemented the statute’s applicability to foreign criminal investigations. The amended statute explicitly covered “criminal investigations conducted before formal accusation.” Commenting on the added language, the Supreme Court in Intel noted that nothing suggests that this amendment was an endeavor to rein in, rather than to confirm, by way of example, the broad range of discovery authorized in 1964. The Intel Court then made clear, when Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect.

The Swiss criminal investigation in the instant case is exactly the type of proceeding that the 1996 amendments to the statute were intended to reach. The criminal inquiry is a proceeding and an investigation being conducted by a Swiss magistrate. The defendant, Mr. Echeverría, has already been charged. And the investigating magistrate has explicitly stated that the Jaitly Documents would be of great usefulness to his inquiry. Thus, the District Court did not err in finding that the Jaitly Documents are for use in a proceeding in a foreign or international tribunal as required by § 1782.

(Internal quotations and citations omitted). This decision shows that Section 1782 can be a powerful tool in aid of foreign litigation. Indeed, there are likely situations where it provides broader discovery than would be allowed domestically.

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