Articles 1782 Proceedings: An Effective Tool for Foreign Parties to Access Broad US Discovery By Stuart A. Krause & Daniel P. Rubel | April 30, 2021 28 USC § 1782 (“1782” or “1782 Proceeding”) provides a straight-forward legal mechanism for a party who has an interest in a foreign proceeding, such as a litigation or governmental investigation, to make an application to the US federal district courts to obtain discovery from a US person or entity, which discovery will be used in the foreign proceeding. The party seeking discovery generally files the 1782 application on an ex parte basis. The application is filed in the US District Court in which the US party who possesses the discovery materials and/or information is located. The Court considers a number of discretionary factors in deciding the 1782 application. 1782 offers a very efficient instrument for participants in a current or imminent foreign legal proceeding or investigation to obtain discovery and evidence from a US based party in aid of the foreign proceeding or investigation, without incurring the time and expenses of a full scale US litigation. Foreign parties can take advantage of the US’s progressive discovery rules, which are often more liberal and expansive than those of foreign regimes, and provides an opportunity to gain material information, which may not be obtainable in a foreign proceeding. For example, a US District Court may issue a subpoena, in response to a 1782 application, to collect information even if the evidence sought may not be admissible in the foreign jurisdiction. One emerging area within 1782 law is the applicability of 1782 to private international commercial arbitration proceedings. The United States Circuit Courts have been split on the issue of whether 1782 can be utilized to obtain discovery in connection with an international arbitration. The United States Supreme Court recently accepted a petition for certiorari to review the Seventh Circuit's decision in Servotronics, Inc. v. Rolls-Royce PLC et al., No 19-1847, in which the Seventh Circuit ruled that 1782 cannot be utilized for international arbitration. The Second and Fifth Circuits have issued similar rulings. The Fourth and Sixth Circuits have held that 1782 does in fact apply to private international commercial arbitration proceedings. ZEK will monitor the U.S. Supreme Court's decision and update its clients and colleagues on the Court’s rulings and ramifications. ZEK maintains a sophisticated practice on behalf of international and domestic clients in 1782 Proceedings and has represented corporations, individuals, receivers and trustees in both offensive and defensive postures. ZEK’s team of experienced litigators and e-discovery professionals are very well versed in the intricacies and strategies involved in a 1782 Proceeding, as well as all the most recent case law and developments in this area. ZEK represents petitioners seeking discovery as well as respondents and third-party intervenors from whom discovery is sought in such proceedings. We are available to answer any questions you may have concerning this article. Stuart Krause is the executive partner of ZEK and chair of ZEK’s high stakes litigation practice. Stu has over 35 years of experience in complex fraud, financial, and commercial litigation and is litigation counsel to large international corporations and Fortune 500 companies. Stu is skilled in fighting huge, fiercely contested, and logistically demanding litigation. His approach, which includes a price advantage and right-size staffing structure, enables Stu and his ZEK team to offer medium size companies facing “bet the company” or other significant litigation the ability to see such cases to trial in a cost-effective manner. Stu has considerable experience in working with clients in 1782 proceedings. For questions regarding this article, please contact Stu at skrause@zeklaw.com. Daniel Rubel is a senior member of ZEK’s litigation group and manages ZEK’s foreign attorney’s office in Tel Aviv. Daniel is the co-head and founder of ZEK’s Israel practice where ZEK provides US legal services to Israeli and other foreign clients. Daniel has a wide variety of experience in representing clients in complex commercial litigation matters including high stakes litigation related to banking, corporate, employment, real estate and trust disputes. Daniel also has extensive experience representing clients in 1782 proceedings. For questions regarding this article, please contact Daniel at drubel@zeklaw.com.
1782 Proceedings: An Effective Tool for Foreign Parties to Access Broad US Discovery By Stuart A. Krause & Daniel P. Rubel | April 30, 2021 28 USC § 1782 (“1782” or “1782 Proceeding”) provides a straight-forward legal mechanism for a party who has an interest in a foreign proceeding, such as a litigation or governmental investigation, to make an application to the US federal district courts to obtain discovery from a US person or entity, which discovery will be used in the foreign proceeding. The party seeking discovery generally files the 1782 application on an ex parte basis. The application is filed in the US District Court in which the US party who possesses the discovery materials and/or information is located. The Court considers a number of discretionary factors in deciding the 1782 application. 1782 offers a very efficient instrument for participants in a current or imminent foreign legal proceeding or investigation to obtain discovery and evidence from a US based party in aid of the foreign proceeding or investigation, without incurring the time and expenses of a full scale US litigation. Foreign parties can take advantage of the US’s progressive discovery rules, which are often more liberal and expansive than those of foreign regimes, and provides an opportunity to gain material information, which may not be obtainable in a foreign proceeding. For example, a US District Court may issue a subpoena, in response to a 1782 application, to collect information even if the evidence sought may not be admissible in the foreign jurisdiction. One emerging area within 1782 law is the applicability of 1782 to private international commercial arbitration proceedings. The United States Circuit Courts have been split on the issue of whether 1782 can be utilized to obtain discovery in connection with an international arbitration. The United States Supreme Court recently accepted a petition for certiorari to review the Seventh Circuit's decision in Servotronics, Inc. v. Rolls-Royce PLC et al., No 19-1847, in which the Seventh Circuit ruled that 1782 cannot be utilized for international arbitration. The Second and Fifth Circuits have issued similar rulings. The Fourth and Sixth Circuits have held that 1782 does in fact apply to private international commercial arbitration proceedings. ZEK will monitor the U.S. Supreme Court's decision and update its clients and colleagues on the Court’s rulings and ramifications. ZEK maintains a sophisticated practice on behalf of international and domestic clients in 1782 Proceedings and has represented corporations, individuals, receivers and trustees in both offensive and defensive postures. ZEK’s team of experienced litigators and e-discovery professionals are very well versed in the intricacies and strategies involved in a 1782 Proceeding, as well as all the most recent case law and developments in this area. ZEK represents petitioners seeking discovery as well as respondents and third-party intervenors from whom discovery is sought in such proceedings. We are available to answer any questions you may have concerning this article. Stuart Krause is the executive partner of ZEK and chair of ZEK’s high stakes litigation practice. Stu has over 35 years of experience in complex fraud, financial, and commercial litigation and is litigation counsel to large international corporations and Fortune 500 companies. Stu is skilled in fighting huge, fiercely contested, and logistically demanding litigation. His approach, which includes a price advantage and right-size staffing structure, enables Stu and his ZEK team to offer medium size companies facing “bet the company” or other significant litigation the ability to see such cases to trial in a cost-effective manner. Stu has considerable experience in working with clients in 1782 proceedings. For questions regarding this article, please contact Stu at skrause@zeklaw.com. Daniel Rubel is a senior member of ZEK’s litigation group and manages ZEK’s foreign attorney’s office in Tel Aviv. Daniel is the co-head and founder of ZEK’s Israel practice where ZEK provides US legal services to Israeli and other foreign clients. Daniel has a wide variety of experience in representing clients in complex commercial litigation matters including high stakes litigation related to banking, corporate, employment, real estate and trust disputes. Daniel also has extensive experience representing clients in 1782 proceedings. For questions regarding this article, please contact Daniel at drubel@zeklaw.com.