The pressures of global litigation have forced litigants to further consider how, when, and where they will obtain discovery. Under developing case law, litigants involved in related litigations in different venues should consider coordinating discovery between venues. Effectively coordinating discovery can mean the difference between successfully obtaining useable information and having your cases stall while each court waits for another to make a decision. A recent example of the need to coordinate discovery comes from a decision by a United States district court in the ongoing patent disputes between Samsung and Apple. The decision highlights the need for effective coordination of international discovery requests and the utility of an under-used statutory provision for obtaining evidence located in the US.
Litigants have options for obtaining evidence located in the United States for use in their proceedings abroad. Notably, the United States is a signatory to the Hague Evidence Convention. There may be advantages, however, to using a less commonly invoked US statutory provision instead: 28 USC section 1782. Like The Hague Convention, section 1782 allows litigants to seek discovery for use in foreign tribunals. But unlike the convention, section 1782 typically does not require the party to first request discovery from a tribunal outside the US and can permit discovery before a commencement of a lawsuit outside the US. The jurisprudence interpreting section 1782 is conducive to international requests for judicial assistance, provided some prerequisites are satisfied and factors are met.
This article first appeared in the April 2013 issue of the Newsletter of the International Litigation News of the Legal Practice Division of the International Bar Association, and is reproduced by kind permission of the International Bar Association, London, UK. © International Bar Association.
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