Use or Abuse of Sec. 1782 Discovery in Less-Developed Legal Systems

Andrew Scappaticci Brickfield

This Note discusses 28 U.S.C. §1782, which authorizes district courts to issue orders compelling discovery of evidence located within their district for use in a proceeding in a foreign tribunal. For a district court to grant a § 1782 application, it must find that the requested evidence is “for use in a foreign or international tribunal.” This Note addresses whether, to satisfy the § 1782 “for use” requirement, applicants must show that they possess some procedural right entitling them to participate in the foreign proceeding or otherwise describe the procedures through which the applicant intends to inject the requested discovery into the foreign proceeding. After reviewing the evolution of § 1782, this Note describes transnational bankruptcy proceedings in less-developed legal systems involving Islamic finance. The Note posits that, in such a context, a narrow reading of the “for use” requirement would contravene the principal Supreme Court decision construing the statute, Intel Corp. v. Advanced Micro Devices, Inc., and its purpose by unnecessarily limiting U.S. judicial assistance to less- developed legal systems. To support that conclusion, this Note surveys federal court precedent interpreting the “for use” requirement. With a focus on Second Circuit decisions, federal court precedent is analyzed against the transnational bankruptcy context, Supreme Court precedent, and the text and “twin aims” of § 1782. This Note rejects a narrow reading of the “for use” requirement as supra-textual, inconsistent with Supreme Court precedent, and unfaithful to § 1782’s twin aims. Understanding that participation rights are an important factor in § 1782 analysis, this Note suggests that a § 1782 applicant’s participation rights are properly assessed not within the “for use” requirement, but under the discretionary factors outlined by the Supreme Court.

* Andrew Scappaticci Brickfield is a student at Columbia Law School, a native of New Jersey, a recreational hockey player, and a home cook.