Regular readers of this column will recall that, over the years, we have closely followed the development of the law under Section 1782 of Title 28 of the U.S. Code (Section 1782).1 In this article, we use the occasion of the 10th anniversary of the Supreme Court’s lone Section 1782 decision to discuss the significant uncertainty that remains concerning an issue spawned by that decision.
To start, a reminder about the statute. Section 1782 authorizes a district court to grant a petition for judicial assistance—ordering the production of documents, as well as depositions of witnesses—if three statutory requirements are met: (1) the request for discovery is made “by a foreign or international tribunal” or “any interested person”; (2) the discovery requested is “for use in a proceeding in a foreign or international tribunal”; and (3) the person from whom the discovery is sought resides, or is found, in the district of the district court where the request has been made. If these statutory requirements are met, the district court may—although it is not required to—exercise its discretion and grant the petition.
