What Is 28 U.S.C. § 1782 and When Does It Apply?

Cross-border disputes are more common than ever, and with them comes the challenge of gathering evidence that spans multiple countries. If you are involved in litigation or an investigation outside the United States, you may be wondering whether there’s a law that allows you to access evidence or testimony located within the U.S.

28 U.S.C. Section 1782 is a federal statute that allows foreign litigants and tribunals to request assistance from U.S. courts in obtaining evidence, and it applies in cases involving foreign legal proceedings.

Every piece of evidence matters when it comes to high-stakes litigation. If you are litigating outside of the U.S. but need to obtain evidence located within the U.S., a Miami civil litigation lawyer can help you obtain it and assist with your defense.

What Is 28 U.S.C. Section 1782 and When Does It Apply?

28 U.S.C. § 1782 is a federal law that authorizes U.S. district courts to assist with evidence gathering for use in foreign legal proceedings. In simple terms, it allows a party involved in a case outside the United States to request discovery (such as documents, depositions, or other materials) from a person or entity located within the jurisdiction of a U.S. court.

For the statute to apply, the following criteria must be met:

• A qualifying request must be made: The application must come from a foreign tribunal or an “interested person,” which can include litigants, complainants, or even potential parties to a dispute.
• The request must seek evidence: The statute is limited to discovery, meaning it covers testimony, statements, documents, and other tangible or intangible evidence.
• The evidence must be for use in a foreign proceeding: The material sought must have relevance to a proceeding in a foreign or international tribunal. This includes both civil and criminal cases.
• The target must reside or be found in the district: The person, entity, or evidence sought must be located within the jurisdiction of the U.S. district court where the application is filed.

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What Are the Benefits of Using 28 U.S.C. § 1782?

Some of the strategic advantages of invoking 28 U.S.C. § 1782 include:

• Access to broader discovery: U.S. discovery rules are generally more expansive than those in many other countries, providing access to materials that might otherwise be unavailable.
• Early evidence gathering: In some cases, you can seek discovery before a foreign case is formally filed (as long as it is reasonably anticipated).
• Leverage in negotiations: The ability to obtain key evidence can strengthen your position in settlement discussions or pre-litigation negotiations.

Who Can File a 28 U.S.C. § 1782 Application?

One of the most flexible aspects of 28 U.S.C. § 1782 is who can initiate the process. Qualifying parties include:

• Foreign tribunals: Courts or governmental bodies outside the United States can directly request assistance.
• Interested persons: This category is interpreted broadly and includes plaintiffs, defendants, and even individuals who may not yet be formal parties but have a reasonable interest in the proceeding.

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What Types of Proceedings Qualify?

28 U.S.C. § 1782 does not apply to every foreign legal matter. That said, courts have recognized several types of proceedings, including:

• Civil litigation: Lawsuits filed in foreign courts are the most common context for 28 U.S.C. § 1782 applications.
• Criminal investigations and prosecutions: Requests can be made even before formal charges are filed, as long as the proceeding is reasonably contemplated.
• Administrative and regulatory proceedings: Investigations conducted by foreign agencies may also qualify.

Due to a 2022 Supreme Court ruling, the statute does not apply to private international commercial arbitrations.

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What Types of Discovery Are Available?

If a court grants a 28 U.S.C. § 1782 application, it can authorize a range of discovery tools similar to those used in domestic U.S. litigation. Common types of Section 1782 discovery include:

• Emails
• Contracts
• Financial records
• Witness testimony
• Subpoenas

What Discretionary Factors Do Courts Consider?

Even if the statutory requirements are met, U.S. courts have discretion to deny or limit a 28 U.S.C. § 1782 application. Factors courts consider when deciding whether to grant a request include:

• Participation in the foreign proceeding: If the person from whom discovery is sought is already involved in the foreign case, U.S. court assistance may not be necessary.
• Nature of the foreign tribunal: Courts consider whether the foreign court or agency is receptive to U.S. judicial assistance.
• Circumvention concerns: Judges may deny requests that appear to sidestep foreign evidence-gathering restrictions or policies.
• Burden and intrusiveness: Overly broad or burdensome requests may be narrowed or rejected altogether.

How Do I File a Request?

The process for obtaining discovery under 28 U.S.C. § 1782 generally involves these steps:

• Filing the application: You submit a formal request to a U.S. district court (often supported by affidavits and legal arguments).
• Court review: In many cases, the court may initially grant the application without notifying the target, allowing discovery to proceed.
• Issuance of subpoenas: If approved, you can serve subpoenas on the target to obtain the requested evidence.
• Potential challenges: The target may file motions to stop or modify the subpoenas, leading to further court proceedings.
• Collection of evidence: Once any disputes are resolved, you can gather the requested evidence and use it in the foreign proceeding.

When Should You Use 28 U.S.C. § 1782?

28 U.S.C. § 1782 is most useful in situations where critical evidence is located in the United States, but the legal dispute is taking place elsewhere. You may want to consider using it if:

• Key documents or witnesses are in the U.S.: Without this law, obtaining certain evidence could be difficult or impossible.
• Foreign discovery rules are limited: U.S. courts may allow broader access to information.
• You need leverage in a dispute: The ability to obtain U.S.-based evidence can shift the balance in negotiations.

Consult a Federal Civil Litigation Attorney

28 U.S.C. § 1782 is a powerful tool, but getting your request approved can be challenging. A federal crime lawyer from DMR Law can review your case, guide you through the process of filing a request, and help you obtain the evidence you need.

Schedule a free consultation to discuss your case with an attorney.

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