MANIFEST DESTINY – USING US DISCOVERY TOOLS TO WIN FOREIGN LITIGATION
As the globalisation trend continues to grow, so does the opportunity for international business disputes. The use of multi-country business agreements and the opportunity for foreign investments are just some examples of the many relationships that have grown out of our connectivity. According to the ‘2017 United Nations Conference on Trade and Development (UNCTAD) World Report’, foreign direct investments increased in several developed countries – including the US – and increased or remained steady in developing countries such as China, India and Russia.
But as investments and other business opportunities spread across the globe, so too does valuable information. Often, persons or businesses located in the US may have information relevant to a foreign business dispute. At the same time, foreign courts may not have the procedural power to compel discovery of those entities. How then can foreign parties obtain the information they need?
The answer lies in the broad discovery practices permitted in the US. In an effort to promote cooperation with foreign courts, US lawmakers have opened US courts to parties with an interest in the outcome of foreign litigation. This article will briefly discuss the basics, pitfalls and benefits of filing a discovery application under 28 U.S.C. § 1782. This seldom used but potent tool can provide foreign litigants with the benefits of US-based discovery in an economical way and without resorting to full-blown litigation.
Oct-Dec 2017 issue
Nixon Peabody LLP