In a decision sure to reverberate through the world of international commercial litigation, the U.S. Court of Appeals for the Second Circuit recently held that litigants in foreign proceedings may ask U.S. courts to compel discovery of documents and other information located outside of the United States. The Second Circuit changed course from dicta in an earlier decision and now joins the Eleventh Circuit in allowing U.S. courts to compel extraterritorial discovery in support of foreign proceedings. Under this decision, a person or entity subject to personal jurisdiction in the Second Circuit could be forced to produce documents located anywhere in the world in response to a discovery request regarding a foreign proceeding—even though that person or entity is not a party to that foreign proceeding.
Section 1782
28 U.S.C. §1782 allows parties in foreign proceedings to obtain discovery for use in those proceedings through the U.S. federal court system. Upon application, §1782 permits a U.S. district court to exercise its discretion to compel discovery from any entity that “resides or is found” in the district where the application is made. Generally, the statute allows for discovery to the extent permitted by the Federal Rules of Civil Procedure in domestic cases.
