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If the number of cases before the Supreme Court in a particular area of the law is a gauge of the significance of that area in the legal landscape, then it is safe to say that international litigation has made its mark. This past term there were at least four significant cases before the Court in the area of international litigation. F. Hoffman Laroche v. Empagranlimited the ability of foreign plaintiffs to bring suit under the Sherman Act. Austria v. Altmannheld that the Foreign Sovereign Immunities Act could be applied retroactively. Alvarez-Machainsignificantly narrowed the scope of cases that can be brought under the Alien Tort Claims Act. In this column, we discuss the fourth decision, Intel Corporation v. Advanced Micro Devices, Inc, 1which relates to 28 USC �1782 and international discovery. Section 1782 is a powerful, yet very much underutilized, tool of international discovery. The Court recently addressed �1782 for the first time in Intel Corporation. 1On each of four questions before it, the Court had a choice between interpreting the statute narrowly or broadly and chose the broad interpretation all four times. Factual Background The case arose out of an antitrust complaint that Advanced Micro Devices, Inc. filed against Intel with the Directorate General for Competition (DG-Competition) of the European Commission. The procedure with such a complaint is that the DG-Competition conducts a preliminary investigation, which ultimately results in a written decision whether to pursue the complaint. If the DG-Competition declines to proceed, that decision is subject to judicial review. If the DG-Competition decides to pursue the complaint, the target of the complaint is entitled to a hearing before an independent officer, who provides a report to the DG-Competition. The DG-Competition then makes a recommendation to the European Commission, which may dismiss the complaint or issue a decision finding infringement and imposing penalties. The European Commission’s final action is subject to judicial review. In this case, Micro Devices recommended that, as part of the investigation, the DG-Competition seek discovery of documents Intel had produced in a private antitrust lawsuit in federal court in Alabama. After the DG-Competition declined, Micro Devices invoked �1782 to seek those documents itself. 2The district court denied the application and the U.S. Court of Appeals for the Ninth Circuit reversed and remanded. The matter was stayed by the district court pending the decision by the Supreme Court. The Supreme Court first addressed the issue of Micro Devices’s standing to invoke the statute. Intel argued that the title of �1782, “Assistance to foreign and international tribunals and to litigants before such tribunals,” uses the word “litigant” and that, because Micro Devices was not a litigant in the proceeding before the DG-Competition, it could not invoke 1782. The Court rejected this narrow reading, noting that the statute provides that an application can be brought by “an interested person.” Because Micro Devices, as the complainant, had the right to submit evidence for consideration by the DG-Competition and the right to appeal the ultimate decision, it qualified as “interested person.” The next issue was whether Micro Devices’ request met the statutory requirement that evidence being sought in a 1782 application be “for use in a foreign or international tribunal.” The Court explained that, under the procedure for this particular European Commission matter, there was no doubt that the courts that had the right to review the decisions of the DG-Competition and the European Commission qualified as tribunals. Strictly speaking, however, the evidence sought by Micro Devices was for use in the investigation before the DG-Competition, not the courts. Nevertheless the Supreme Court reasoned that the subsequent review by the courts of the decision of the DG-Competition or the European Commission would be limited to the evidentiary record established before the European Commission. Thus, since Micro Devices could “use” evidence in the reviewing courts only by submitting it to the commission in the investigative stage, the Supreme Court held that Micro Devices met the requirement of “for use” in an international tribunal. A third issue related to Intel’s argument that Micro Devices’s complaint had not progressed beyond the investigative stage and that no adjudicative action was pending or imminent. The Supreme Court pointed out that the 1964 amendments to � 1782 deleted the requirement that a proceeding be “pending.” The court also specifically rejected a holding by the U.S. Court of Appeals for the Second Circuit that �1782 can be used only if an adjudicative proceeding is pending or “imminent.” Instead, the Supreme Court held that it was sufficient that a dispositive ruling by the Commission, reviewable by the European courts, was within reasonable contemplation. Discoverability Requirement That last issue before the Court concerned the so-called “discoverability requirement,” an issue that had split the circuit courts. In the U.S. Court of Appeals for the First and Eleventh Circuits, there is a categorical bar to granting �1782 discovery if the party seeking the discovery would not be able to obtain the documents if they were located in the foreign jurisdiction in which the foreign proceeding is pending. The Second, Third and Ninth Circuits have rejected the discoverability requirement and the Supreme Court agreed with them. The Court’s reasoning was simple: nothing in the text of the statute or in the legislative history limited the district court’s production-order authority to material that could be discovered in a foreign jurisdiction if the materials were located there. Because the discoverability requirement was not in the statute, the court refused to read in such a requirement. The Supreme Court also addressed the two policy arguments raised by Intel in favor of the discoverability requirement. Under the comity argument, it is allegedly offensive to foreign governments if U.S.-style discovery is used as a back-door mechanism to obtain evidence that is otherwise unavailable in the jurisdiction in which the proceeding is pending. But the Supreme Court questioned whether foreign governments would in fact be offended by a domestic system permitting, but not requiring, judicial assistance in obtaining discovery. In support of this position, the Court referred to a House of Lords decision which held that, notwithstanding the fact that particular evidence was not discoverable under English law, there was no objection to the litigant in the English proceeding’s seeking assistance in the states under � 1782. 3 The second policy argument in favor of the discoverability requirement concerns parity. Thus, as an example, if there is a lawsuit in Japan between a Japanese plaintiff and a U.S. defendant, the Japanese plaintiff would be able to come to the United States and use �1782 to obtain documentary discovery and depositions from the U.S. defendant. This would put the U.S. party at a distinct disadvantage because there is no discovery in Japan and, therefore, it would not be able to obtain document production from the Japanese party. The Supreme Court’s response was similar to the reasoning that has been used by the Second Circuit in rejecting the discoverability requirement. That is, the district court has the discretion to fashion an appropriate discovery order which, in the context of the hypothetical just posited, could include conditioning the granting of discovery to the Japanese party on an undertaking by the Japanese party to provide reciprocal discovery. The Court made clear in Section IV of its opinion that it was not establishing hard rules in favor of discovery under �1782. Rather, the court reiterated that a district court is not required to grant �1782 discovery simply because the requirements of the statute have been met. One factor the Court indicated should be considered by the district court is whether the person from whom discovery is sought is a party or a non-party to the foreign proceeding � with the understanding that discovery should more readily be provided against non-parties. Furthermore, the Court noted that a district court may take into account “the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance.” In that regard, the comity and parity arguments that the Supreme Court refused to rely on as categorical bars to 1782 applications can be among the factors considered by the district court. Observations One of the most interesting facts about the Intelcase is that the European Commission submitted an amicus brief to the Supreme Court in which it stated that it did not want or need the district court to order discovery under �1782. The history of �1782 makes clear that, at bottom, it is grounded in notions of comity. Accordingly, the Court could have issued a narrow ruling that, under the unique facts in this case, where the foreign tribunal specifically stated that it did it not want �1782 discovery, the request should be denied on grounds of comity. Similarly, as previously noted, the statute provides that the evidence being sought must be “for use in” a foreign proceeding. Thus, the Court could have rejected the 1782 application on the narrow grounds that the “for use in” requirement is not satisfied when the foreign body affirmatively states that it does not want to use the evidence sought under �1782. The fact that the Court eschewed these narrow rulings appears to be an indication that it wanted the opportunity to speak to some of the broader principles under � 1782 that go beyond the Intelcase. Indeed, with respect to the facts of this particular case, it would not be surprising if, on remand, the district court refuses to grant the 1782 discovery sought by Micro Devices. Nevertheless, the Supreme Court will have accomplished its goal of establishing certain more general principles. Most significantly, the Court has told those circuit courts that have applied the discoverability requirement that they can no longer use that as a categorical bar to �1782 discovery. It also made clear that there is no basis for the courts to require that the foreign proceeding be imminent for �1782 to apply. More generally, it would appear that the Court has sent a message that �1782 is a broadly drafted statute that authorizes – but does not require – district courts to grant international discovery in many instances. The decision will likely result in more liberal application of the statute in those circuits that have heretofore applied it narrowly. However, because the Court specifically noted that �1782 does not “require” that discovery be granted in any particular case, it will be necessary for case law to develop before one can see how broadly the statute is applied. Lawrence W. Newman and David Zaslowsky are partners at Baker & McKenzie and are the authors of “Litigating International Commercial Disputes” (West Group 1996). They can be reached at, respectively, [email protected] and [email protected] . Endnotes: 1. The decision can be found at . 2. � 1782 provides, in relevant part: “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 in a foreign or international tribunal . . . the order may be made . . . the application of any interested person . . . “ 3. South Carolina Ins. Co. v. Assurantie Maatschappij “De Zeven Provincien” NV, [1987] 1 App. Cas. 24.

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