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An Unequal Playing Field?

Matthew IngberAmerican courts allow more generous discovery than almost any other judiciary in the world. A recent 7th Circuit decision provides a stark reminder that broad U.S. discovery can be available even when a case is heard in foreign courts, through the procedure established by 28 U.S.C. ? 1782. The silver lining of that decision, to parties that are wary (or weary) of open-ended American-style discovery, is that the court also offered a road map to resisting and perhaps contracting around such discovery requests. The opinion also emphasizes the importance of coordinating the efforts of outside litigators to fight Section 1782 requests both in the American court and in the forum in which the litigation is pending.

Section 1782 allows federal district courts to order the production of documents, for use in a foreign proceeding, from anyone (whether or not a party) who is subject to the court's jurisdiction. The statute allows litigants to apply directly to the district court, without the need for the usually time-consuming process of letters rogatory. Unless the U.S. court orders otherwise, discovery is governed by the federal rules, which usually will allow far broader discovery than would be available in the foreign court.

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Matthew Ingber

Matthew Ingber is a litigation partner at Mayer Brown.

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