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As globalization continues to reduce barriers to the movement of goods, capital and ideas, today’s businesses routinely operate, invest, and sell their products in numerous jurisdictions around the world. As cross-border business transactions become the norm, rather than the exception, it is unsurprising that incidents of cross-border litigation are also on the rise. These disputes frequently involve parallel proceedings—both litigations and arbitrations—in jurisdictions governed by diverse legal systems. Lawyers representing clients in these complicated games of “three-dimensional chess” are therefore required to understand substantive and procedural nuances of each forum in order to obtain the best results for their clients. Scott Flaherty, “What It Takes to Dominate in the Elite Game of International Litigation,” American Lawyer, Sept. 28, 2017. In the United States, one tool of which every cross-border litigant should be mindful is §1782 discovery.

Originally passed in 1855 as a means to respond to direct requests for assistance from foreign courts, the scope of discovery permitted by §1782 has grown rapidly since the U.S. Supreme Court’s seminal decision in Intel v. Advanced Micro Devices, 542 U.S. 241, 246-47 (2004). Since Intel, lower courts have become increasingly willing to grant §1782 discovery and lawyers in foreign jurisdictions have increasingly become aware of the opportunities afforded by §1782. Not surprisingly, the number of §1782 applications has increased substantially resulting in an ever broader reading of the section. This article looks at three recent developments in the use of §1782 discovery: its use in aid of private commercial arbitration, its use in accessing evidence for use in jurisdictions with restrictive discovery regimes, and the recent trend of serving subpoenas on U.S.-based counsel to obtain documents belonging to their non-U.S. clients.

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