Please contact Luis O'Naghten if you need any assistance with international litigation or arbitration matters. He has extensive experience in complex commercial disputes before US courts and international arbitration panels.

1. Effective Use of American Discovery
Methods in Disputes Before Foreign
Courts
The Expanded Role
of 28 U.S.C. § 1782
By
Luis M. O'Naghten

2. Background
• Origins of § 1782 date back to the mid-19th
Century
• Congress expanded the scope in 1948 and
1964 amendments
• Supreme Court’s decision in Intel v.
Advanced Micro Devices (2004) substantially
liberalized the use of § 1782

3. Background – cont’d
• Currently, § 1782 may be used to obtain
documents and deposition testimony
• A party seeking § 1782 discovery files an
application with a district court
• The Federal Rules of Civil Procedure
apply unless the court orders otherwise
• A person may not be compelled to give
testimony or produce documents in
violation of any applicable privilege

4. Statutory Requirements
1. The person (or entity) from whom the
discovery is sought “resides or is found”
within the district
2. The requesting party is a foreign or
international tribunal or an “interested
person”
3. The requested discovery is “for use in a
proceeding in a foreign or international
tribunal”

5. Discretionary Factors
1. Whether the person from whom discovery is sought is
a participant in the foreign proceeding
2. Whether the foreign government, court or agency
would be receptive to U.S. federal-court judicial
assistance
3. Whether the application conceals an attempt to
circumvent foreign proof-gathering restrictions or other
policies of a foreign country or the United States
4. Whether the requested discovery is unduly intrusive or
burdensome

6. The Supreme Court’s 2004
Decision in Intel v. AMD
• AMD filed an antitrust complaint against Intel with the
Directorate-General for Competition (DG-Commission) of the
Commission of the European Communities
• AMD applied to the district court in Northern California for a
§ 1782 order requiring Intel to produce potentially relevant
documents for use in the DG-Commission proceeding
• The Supreme Court took the case to resolve a split among the
circuits re whether § 1782 assistance is available only if the
foreign tribunal would allow the discovery
• Held: § 1782 does not contain a “foreign-discoverability”
requirement

7. The Supreme Court’s 2004
Decision in Intel v. AMD - continued
• The Supreme Court clarified other issues:
 Rejected Intel’s contention that the phrase “any
interested person” refers only to “litigants,” finding it
encompasses persons with a “reasonable interest in
obtaining [judicial] assistance,” including complainants
to the DG-Commission.
 Held the DG-Commission was a “tribunal” because it
“acts as a first-instance decision maker.”
 Held the proceeding for which discovery is sought
must be “in reasonable contemplation but need not be
‘pending’ or ‘imminent.’”

8. Post-Intel Issues Remain
• Is a private commercial arbitration a
proceeding before a “foreign or
international tribunal”?
• Does § 1782 have extra-territorial reach?
• Others

9. Pre-Intel Courts Rejected the
Application of § 1782 to Arbitrations
• National Broadcasting Co. v. Bear Stearns &
Co., 165 F.3d 184 (2d Cir. 1999)
 § 1782 applies only to “state-sponsored adjudicatory
bodies”, not proceedings before private arbitral panels
 upheld decision to quash subpoenas in aid of ICC
arbitration in Mexico
• Republic of Kazahkstan v. Beidermann, 168
F.3d 880 (5th Cir. 1999)
 followed 2d Circuit - § 1782 does not apply to private
international arbitrations
 rejected Kazahkstan’s application for discovery for
use in SCC arbitration

10. Post-Intel Courts Are Divided on Use
of § 1782 for International Arbitrations
Courts that say “yes”
• In re Oxus Gold, PLC (D.N.J. 2006)
• In re Roz Trading Ltd. (N.D. Ga. 2006)
• In re Application of Hallmark Capital Corp., (D. Minn. 2007)
• In Re Application of Babcock Borsig AG (D. Mass. 2008)
• OJSC Ukrnafta v. Carpatsky Petroleum Corp. (D. Conn. Aug. 27,
2009)
Courts that say “no”
• El Paso Corp. v. La Comision Ejecutiva Hidroeclectrica del Rio
Lempa (5th Cir. Aug. 6, 2009)
• in re Application of Operadora DB Mexico, S.A. (M.D. Fla. Aug. 4,
2009)
• In re Arbitration in London, England (N.D. Ill. June 15, 2009)

11. Extraterritorial Reach?
• The issue – documents located outside the
United States
• Competing considerations
 Pro: (1) U.S. discovery rules require the production of
all documents within a person’s possession, custody
or control, (2) § 1782 text requires only that person be
found here, not documents
 Con: (1) 1964 Senate Report refers to “obtaining . . .
documentary evidence in the United States”, (2) U.S.
will become global clearinghouse for document
requests, (3) potential interference with other nation’s
courts

12. Schottdorf Case – SD NY finds
§ 1782 has extraterritorial reach
In re Application of Gemeinschaftspraxis Dr. Med.
Schottdorf, 2006 WL 3844464 (S.D.N.Y. Dec. 29, 2006)
• Schottdorf, a German partnership, sued a German
physicians’ association for conduct allegedly based on a
study performed by McKinsey Company
• Schottdorf sought to serve a subpoena on McKinsey in
NY seeking its report and related documents in Germany
• The district court held § 1782 assistance was available:
“Section 1782 requires only that the party from whom
discovery is sought be ‘found’ here; not that the
documents be found here.”

13. Other Courts Decline to Give
Extraterritorial Reach
• Norex Petroleum Ltd. v Chubb Ins. Co. of
Canada (D.D.C. 2005)
• In re Nokia Corp. (W.D. Mich. 2007)
• In re Microsoft (S.D.N.Y. 2006)

14. Other Open Issues
• “Tag” jurisdiction
• Reciprocity
• Pre-litigation discovery

15. Contact
Luis M. O’Naghten
Shareholder, Akerman Senterfitt
Miami Global Practice Group
Practice Area: International complex commercial litigation and arbitration before United States courts
and international arbitration panels (under ICC, AAA/ICDR, and UNCITRAL rules); handles a
wide range of disputes in several countries in Latin America and Spain; focus on international
financial frauds, energy disputes, corporate disputes; fluent in Spanish; 20+ years in field
Clients: Foreign sovereigns; parties adverse to foreign sovereigns; major international banks; US
based and foreign multinational corporations; US energy companies
Professional affiliations: ICC Commission on Arbitration; ICC Task Force on Revision of Rules;
USCIB Arbitration Florida Sub-Committee
Education: Georgetown University; Columbia Law School
Contact: luis.onaghten@akerman.com or at 305.982.5687