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by Andrew Flake

As someone who likes to be prepared, and who also appreciates a good gadget, I’ve always felt more comfortable knowing I have, stored away in some drawer somewhere, a sturdy Swiss-army knife. More recently, i”ve replaced it with one of those 30-in-1 multitools, the one that fold out into an array of implements: a small saw, scissors, a screwdriver, a set of pliers, and on to more esoteric implements like the awl — for that unexpected scenario in which I’m called upon to punch a hole through cowhide. The need hasn’t arisen, but it’s reassuring to know I’m ready.

For the foreign company needing to gather evidence here in the U.S., a relatively short but very powerful U.S. statute, 28 U.S.C. Section 1782, is like one of these tools: reliable, flexible, adaptable to a range of needs. It is is a streamlined way for a company in a foreign-based dispute, even one being contemplated and not yet filed, to take some discovery here in the U.S., with the advantages of our broader discovery rules. Parties resisting discovery will, quite often, try to read in new constraints or limitations and, just as often, the appellate courts will rebuff those arguments.

The classic Swiss-style pocket knife, reliably adapting to situations long before there was an app for that.

So it was with a short recent Eleventh Circuit decision, Rothe v. Aballi, concerning documents requested here in the U.S. from a family trust. The Court of Appeals upheld a contested decision by the District Court to allow discovery under the statute. That was an appropriate result, and the per curiam opinion, though unpublished, contains some good reminders about the very broad parameters, provisions and intent behind Section 1782:

  • No merits review. The process should be streamlined. The statute contemplates that if certain prerequisites are met, discovery will be available, without any need to delve into or argue the merits of the underlying foreign dispute.
  • Magistrate referrals. Relatedly, if referred to a magistrate judge, who rules on an initial request, the magistrate’s decisions are non-dispositve matters. The district court reviews them only for clear error or aspects contrary to law, a standard very consistent with the goal of providing more streamlined relief for the foreign litigant. Although optimally there would not need to be even the additional time associated with a magistrate referral, these are discovery-related matters, and our district judges are exceptionally busy. So when they do need to be referred, it does not serve the purpose of efficiency to have what would otherwise simply be reargument before the district court of issues decided by the magistrate, absent some error that truly warrants correction.
  • No exhaustion requirement. Litigants will often argue that that the party seeking discovery could obtain the same documents abroad, and should undertake all efforts to do so first. No such requirement exists in Section 1782. Similarly, there is no requirement that the documents requested and obtained be admissible into evidence in the foreign proceeding, or, although they must be “for use in” the foreign proceeding, that they are ultimately used in a specific fashion.
  • No specific use requirement. The “use” can be at different stages, including on appeal, in the foreign proceeding. The expressed intent in Rothe seemed to be that the documents be used not in the current first instance dispute, but in a possible later appeal. The Eleventh Circuit confirmed that the scope of Section 1782 discovery “is not strictly limited to the current posture of the foreign proceeding.”
[The case is Rothe v. Aballi, Case 20-12543 (11th Cir., decided Sept. 27, 2021).