Exporting American Discovery
This Article presents the first comprehensive study of an intriguing and increasingly pervasive practice that is transforming civil litigation worldwide: US judges now routinely compel discovery in this country and make it available for disputes and parties not before US courts. In the past decade and a half, federal courts have received and granted thousands of such discovery requests for use in foreign civil proceedings governed by different procedural rules. I call this global role played by US courts the “export” of American discovery.
This Article compiles and analyzes a dataset of over three thousand foreign discovery requests filed between 2005 and 2017 under 28 USC § 1782—an expansive statute that is now the pivotal law governing the export of American discovery. I use the dataset to show that the foreign civil demand for US discovery has approximately quadrupled during the study period, that demand from foreign private actors now overshadows demand from foreign tribunals, and that the requests’ countries of origin have diversified. I then map the ways in which the machinery of domestic discovery is distorted in the context of global discovery, leading to missing foreign stakeholders and systematic bias toward compelling discovery. Reflexively exporting US discovery, in turn, undermines Supreme Court doctrine, risks imposing unintended externalities on foreign tribunals and foreign litigants, and erodes universal notions of fairness and due process.
Although foreign discovery requests account for a small fraction of federal dockets, they provide an illustrative case study of the larger phenomenon of disputes straddling multiple legal systems. Litigants and attorneys are now strategizing across borders and deploying national procedural tools to their global advantage. Yet, judges continue to operate within national silos even as they play a global role. Consequently, judges are at an informational disadvantage when they adjudicate disputes only parts of which are before them. This contemporary challenge calls for institutional solutions in the form of court-to-court information sharing and coordination across borders, as well as a reconceptualization of federal judges as global actors who share overlapping authority with foreign judges and arbitrators.
“A curious quirk of our law is that American courts are not limited to American disputes.”
–Then–Magistrate Judge Paul Singh Grewal, Northern District of California1
1In re Ex Parte Application of Qualcomm Inc, 162 F Supp 3d 1029, 1032 (ND Cal 2016).
“[T]he obvious question is well, why, don’t they have access to that discovery vehicle in Argentina, why do they need access to this little Reno office[?]”
–Then–Chief Judge Robert C. Jones, District of Nevada2
2Transcript of Miscellaneous Hearing, Request for International Judicial Assistance from the National Court of First Instance in Labor Matters No 37 of Buenos Aires, Argentina, No 3:12-cv-00662, *3 (D Nev filed Apr 13, 2013).
Across the country, federal courts now routinely have a hand in the resolution of foreign civil disputes. They do so by compelling discovery in the United States—typically as much discovery as would be available for a lawsuit adjudicated in federal district court—and making it available for use in foreign civil proceedings3
By foreign civil proceedings, I mean the full range of foreign civil dispute resolution proceedings for which discovery is now being requested in US federal courts, including those before foreign and international courts, foreign regulatory agencies, as well as commercial and investor-state arbitral tribunals.
See Part II.
Id. By foreign parties, I mean any parties to foreign civil proceedings.
See, for example, Memorandum of Law in Support of the Republic of Ecuador and Dr. Diego García Carrión’s Application for an Order Under 28 U.S.C. § 1782(a) to Issue a Subpoena to John A. Connor for the Taking of a Deposition and the Production of Documents for Use in a Foreign Proceeding, In re Republic of Ecuador, No 4:11-mc-00516, *2 (SD Tex filed Nov 28, 2011).
See, for example, Order Granting in Part and Denying in Part Motion to Compel, Kwong v Battery Tai-Shing Corp, No C 08-80142, *1–2 (ND Cal filed Feb 5, 2009).
See, for example, Memorandum of Law in Support of Application for Order, Request for International Judicial Assistance from the 24th Civil Court of Santiago, Chile in Juan Carols Said Kattan v Antonio Miguel Orlandini Said, No 1:17-mc-22657, *1 (SD Fla filed July 17, 2017).
See, for example, Order, In re Request for International Judicial Assistance from The First Instance Court, Calarasi, Romania; Matter of Ionela Camelia Buzduga v Constantin Viorel Buzduga, No 4:16-mc-01439, *3–4 (SD Tex filed July 4, 2016).
See, for example, Ex Parte Application, Without a Letter Rogatory Pursuant to Title 28 U.S.C § 1782 for Discovery Ordered by Islamic Republic of Iran Kish Island, Department 102, Declaration of Counsel, Declaration of Defendant & Proposed Order, Borhani v Ahmadi, No 8:16-mc-00021, *1–2 (CD Cal filed Sept 19, 2016).
See, for example, Ex Parte Order, In re Letter of Request for International Judicial Assistance from the Seoul Central District Court, In the Matter of Subway International B.V. v Kyung Hee Hwang, No 1:13-mc-00059, *1 (SDNY filed Feb 22, 2013).
Scholars writing on the subject have focused almost exclusively on high-profile decisions and circuit splits. See notes 38–43 and accompanying text. There is one limited systematic study of published decisions granting discovery for use in connection with foreign commercial arbitration, but it only examines a small number of unpublished decisions. See Kevin E. Davis, Helen Hershkoff, and Nathan Yaffe, Private Preference, Public Process: U.S. Discovery in Aid of Foreign and International Arbitration *12–14 & nn 75–77 (NYU School of Law Public Law & Legal Theory Working Paper No 15-51, Oct 30, 2015) (identifying twenty-two published opinions of this type).
See, for example, Duane Loft and Joshua Libling, Discovery in Aid of International Proceedings: Recent Developments in Section 1782 (Boies Schiller Flexner, Oct 20, 2015), archived at https://perma.cc/QU8U-M9BL;H. Christopher Boehning, Damiën F. Berkhout, and Peter Hering, The Consorcio Decision and the Need to Account for Discovery Outside the Arbitration Procedure (International Bar Association Legal Practice Division, Feb 2013), archived at https://perma.cc/2W24-EXE3;Claudia T. Salomon, David McLean, Samuel B.C. de Villiers, and Eric M. Broad, US Court of Appeals Revises Opinion: Section 1782’s Use in Arbitration Ambiguous (Latham & Watkins, Feb 3, 2014), archived at https://perma.cc/B5LL-FAL4.
Robert W. Gaffey and Bridget A. Crawford, Developments in U.S. Law Regarding a More Liberal Approach to Discovery Requests Made by Foreign Litigants Under 28 U.S.C. § 1782 (Jones Day, Apr 2009), archived at https://perma.cc/WJL9-Y2CF.
Lyons Flood, Discovery In Aid of Foreign Proceedings, archived at https://perma.cc/767Z-BFCT.
Christopher J. Houpt and Mark G. Hanchet, Section 1782 Discovery: A Back Door for Foreign Litigants (Mayer Brown, Mar 2012), archived at https://perma.cc/AL66-P94S.
Harout J. Samra, US Courts Affirm Expansive Discovery Under 28 U.S.C. § 1782 (DLA Piper, Sept 29, 2015), archived at https://perma.cc/9C6B-PBWF.
I call this growing global role played by US courts and judges the “export” of American discovery.18
As explained below, “export” here occurs on a case-by-case basis, and with the participation of foreign courts or foreign private actors.
American civil procedure is well recognized as being exceptional.19
See Robert A. Kagan, Adversarial Legalism: The American Way of Law 3 (Harvard 2001) (“Compared to other economically advanced democracies, American civic life is more deeply pervaded by legal conflict and by controversy about legal processes.”). See also generally Amalia D. Kessler, Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800–1877 (Yale 2017) (recounting the nineteenth-century origins of the idea of American legal exceptionalism); Richard L. Marcus, Putting American Procedural Exceptionalism into a Globalized Context, 53 Am J Comp L 709 (2005).
Heraeus Kulzer, GmbH v Biomet, Inc, 633 F3d 591, 594 (7th Cir 2011).
See Part III.A.
See Mirjan R. Damaska, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process 71–96 (Yale 1986) (describing two orientations of government: the “activist” state, which pursues its vision of the good life through policy implementation and tends toward legal institutions that are hierarchical judicial bureaucracies; and the “reactive” state, which provides a framework for its citizens to pursue their own goals and tends toward legal institutions that are more like that of the United States). See also Kagan, Adversarial Legalism at 3 (cited in note 19) (describing legal process in the United States as “adversarial legalism,” meaning “policymaking, policy implementation, and dispute resolution by means of lawyer-dominated litigation”); Diego A. Zambrano, Discovery as Regulation, 119 Mich L Rev *25–27, 32–34 (forthcoming 2020), archived at https://perma.cc/W8DS-7B7D(arguing that American discovery serves regulatory goals by relying on private litigants to enforce important statutes).
See, for example, James H. Carter, Existing Rules and Procedures, 13 Intl Law 5, 5 (1979) (noting that the “virtually boundless sweep of the pre-trial procedures presently permitted by many American courts is so completely alien to the procedure in most other jurisdictions that an attitude of suspicion and hostility is created”).
Operating across different discovery systems offers private actors opportunities for arbitrage. Seeking US discovery is typically straightforward. One files a request with the federal district court where the discovery target is located. That request is usually entertained and granted with minimal judicial activity and on an ex parte basis—without the participation of the foreign opposing party or the foreign tribunal before which the discovery is to be used. The target of the request is then subpoenaed and ordered to produce discovery according to the scope and practices of the Federal Rules of Civil Procedure (FRCP). The target might happen to be the foreign opposing party or might choose to voluntarily alert the foreign opposing party, who might in turn inform the foreign tribunal, but that does not always happen. The foreign opposing party and the foreign tribunal might never know that one side of the case was built using different discovery practices than those governing the remainder of the dispute.
These requests generate complications for both the foreign opposing party and the foreign tribunal. Take the example of a discovery request filed in the Northern District of Alabama by a private actor seeking discovery from a US bank for a contemplated lawsuit in the British Virgin Islands.24
See Memorandum of Law in Support of Bracha Foundation’s Application for an Order Granting Discovery Pursuant to 28 U.S.C. § 1782, In re Application of Bracha Foundation Request for Discovery Pursuant to 28 USC § 1782, No 2:15-mc-00748, *1–2 & n 1 (ND Ala filed May 1, 2015) (Bracha Foundation Discovery Application Memo).
Act of Oct 3, 1964, Pub L No 88-619, 78 Stat 995 (1964), codified at 28 USC § 1782.
See Bracha Foundation Discovery Application Memo at *1–2 n 1 (cited in note 24) (explaining that the private actor commenced a related action in the British Virgin Islands and filed similar discovery applications in the United States District Courts for the Southern District of New York, the Southern District of Florida, and the Northern District of Ohio).
See In re Application of Bracha Foundation Request for Discovery Pursuant to 28 USC § 1782, 2015 WL 6123204, *1 (ND Ala) (explaining that “the use of ex parte § 1782 applications is widespread and that granting them is not improper based on their ex parte nature”).
Consider also the example of the European Commission filing an amicus brief before the US Supreme Court in 2003 to prevent a district court in the Northern District of California from compelling the production of evidence, ostensibly in its aid.28
Brief of Amicus Curiae the Commission of the European Communities Supporting Reversal, Intel Corp v Advanced Micro Devices, Inc, No 02‑572, *1–6 (US filed Dec 23, 2003) (available on Westlaw at 2003 WL 23138389) (European Commission Brief).
European Commission, 37.990 Intel *12–19 (2009), archived at https://perma.cc/9MWQ-XTE8.
AMD’s Application for Order Directing Intel to Produce Documents Pursuant to 28 U.S.C. § 1782 for Use in European Commission, Case No. Comp/C3-37.990 – AMD/Intel, Advanced Micro Devices, Inc v Intel Corp, No 01-7033, *1–3 (ND Cal filed Oct 1, 2001) (available on Westlaw at 2001 WL 35995385).
Transcript of Oral Argument, Intel Corp v Advanced Micro Devices, Inc, No 02-572, *18, 21–22 (US filed Apr 20, 2004) (available on Westlaw at 2004 WL 954709).
Id at *21.
These two cases illustrate the consequences that American discovery can have for foreign courts and foreign parties—consequences that were not intended by Congress or by the Supreme Court. When Congress first enacted § 1782 in its current form, it believed the statute to be “the kind of assistance that is likely to be preferred abroad,”33
Hans Smit, International Litigation Under the United States Code, 65 Colum L Rev 1015, 1018 (1965). Hans Smit, professor at Columbia Law School, served as the reporter to the Commission on International Rules of Judicial Procedure that drafted the current version of § 1782. See id at 1015.
Judicial Procedures in Litigation with International Aspects, S Rep No 88-1580, 88th Cong, 2d Sess § 9 at 7 (1964), reprinted in 1964 USCCAN 3782, 3788.
See Intel Corp v Advanced Micro Devices, Inc, 542 US 241, 261 (2004) (noting that comity and parity are “important [ ] touchstones for a district court’s exercise of discretion in particular cases”).
These factors include whether the foreign court needs and is receptive to US discovery, and whether the request “conceals an attempt to circumvent foreign proof-gathering restrictions.” Id at 264–65.
See Advanced Micro Devices, Inc v Intel Corp, 2004 WL 2282320, *1 (ND Cal).
Yet, the export of American discovery has also been described as “legal imperialism”38
Molly Warner Lien, The Cooperative and Integrative Models of International Judicial Comity: Two Illustrations Using Transnational Discovery and Breard Scenarios, 50 Cath U L Rev 591, 624 (2001).
Richard L. Marcus, Retooling American Discovery for the Twenty-First Century: Toward a New World Order?, 7 Tulane J Intl & Comp L 153, 193 (1999).
See Brian Eric Bomstein and Julie M. Levitt, Comment, Much Ado About 1782: A Look at Recent Problems with Discovery in the United States for Use in Foreign Litigation Under 28 U.S.C. § 1782, 20 U Miami Int-Am L Rev 429, 431–32 (1989) (explaining that the “nearly unbridled discretion” exercised by district courts under 28 USC § 1782 in deciding whether to aid foreign fact-finding “is the root of the problem[ ]”); Marat A. Massen, Discovery for Foreign Proceedings After Intel v. Advanced Micro Devices: A Critical Analysis of 28 U.S.C. § 1782 Jurisprudence, 83 S Cal L Rev 875, 877 (2010) (noting that most academic criticism of 28 USC § 1782 and the Supreme Court’s interpretation of that statute has focused on granting “judges too much discretion for evaluating” foreign discovery requests).
Proposals include a default rule that requests be denied when they seek discovery for certain types of foreign proceedings, most notably commercial arbitrations, and that requests be granted only when the sought-after discovery would be discoverable in the foreign proceeding in which it is to be used. Courts and academics are split on whether § 1782 permits the export of discovery to commercial arbitral tribunals, and the latter proposal was rejected as a bright-line rule by the Supreme Court. Compare In re: Application to Obtain Discovery for Use in Foreign Proceedings, 939 F3d 710, 723 (6th Cir 2019) (holding that private commercial arbitral tribunals are covered by § 1782); Servotronics, Inc v Boeing Co, 954 F3d 209, 214–16 (4th Cir 2020) (same), with Republic of Kazakhstan v Biedermann International, 168 F3d 880, 881–83 (5th Cir 1999) (holding that private commercial arbitral tribunals are not covered by § 1782); National Broadcasting Company, Inc v Bear Stearns & Co, 165 F3d 184, 191 (2d Cir 1999) (same). See also, for example, New York City Bar Association Committee on International Commercial Disputes, 28 U.S.C. § 1782 as a Means of Obtaining Discovery in Aid of International Commercial Arbitration—Applicability and Best Practices 19–25 (2008), archived at https://perma.cc/FUP4-K2JD(describing the circuit split).
See David J. Gerber, Obscured Visions: Policy, Power, and Discretion in Transnational Discovery, 23 Vand J Transnatl L 993, 1007 (1991) (noting that the excessive discretion exercised by judges in responding to foreign discovery requests inappropriately “shifts the available use of United States power from the executive and legislative branches to the judiciary”).
See Stephen B. Burbank, The Reluctant Partner: Making Procedural Law for International Civil Litigation, 57 L & Contemp Probs 103, 135–39 (1994) (criticizing the United States’ historical preference for a unilateral approach that is “hard to justify, even in purely practical terms, in a world that is increasingly interdependent and in which our economic strength is waning”).
The United States has ratified the Hague Evidence Convention. See Hague Conference on Private International Law, HCCH Members, archived at https://perma.cc/QC9R-7J5Q.
See Burbank, 57 L & Contemp Probs at 132 (cited in note 43) (noting that the Hague Evidence Convention “has been a disappointment to many countries that ratified it and a source of controversy and friction”).
See James A.R. Nafziger, Another Look at the Hague Evidence Convention After Aerospatiale, 38 Tex Intl L J 103, 116 (2003) (noting the “need for uniform procedures or at least procedural standards” given the Hague Evidence Convention’s failure to bridge international differences in discovery procedures).
See Marcus, 7 Tulane J Intl & Comp L at 199 (cited in note 39) (arguing that despite US reforms to constrain discovery in recent decades, “a new world order that fits the American reality and also commands the respect of the rest of the industrialized world is probably a thing of the remote future so far as discovery is concerned”).
I argue that the export of American discovery is in need of reform. Its most pressing shortcoming is its failure to include and to provide due process to the appropriate actors. When discovery is exported, it has ripple effects for foreign adversaries against whom the evidence is to be used, and for the foreign tribunal overseeing the dispute. Yet, there is no established mechanism for informing or involving those entities. Instead, federal judges have remained at arm’s length from the very foreign proceedings they are influencing, and have engaged in the impossible task of abstractly weighing foreign interests with no foreign input. The problem, therefore, is not an excess of discretion, but a shortage of information. This problem can be addressed in the immediate term through shifts in judicial practice, and in the medium term through changes to the FRCP and amendments to § 1782. In the long term, a broader reconceptualization of the global role played by federal judges—and the global space in which they operate—is needed.
This Article proceeds in four Parts. Part I describes the centrality of § 1782 to the export of discovery. The statute allows foreign tribunals and foreign private actors to seek US discovery directly from federal district courts. In interpreting the statute, the Supreme Court instructed district courts to consider a foreign tribunal’s need for and receptivity to US discovery, and to maintain an appropriate measure of parity between the parties.48
See Intel, 542 US at 262–65.
Part II provides a comprehensive, nationwide, descriptive account of how foreign discovery requests have operated in district courts. I compiled a dataset of over three thousand foreign discovery requests filed under § 1782 between 2005 and 2017, approximately two thousand of which are for use in civil proceedings abroad. Relying on the dataset, I show that the foreign civil demand for US discovery has approximately quadrupled in that time, and that their countries of origin have diversified. Demand from foreign parties now overshadows demand from foreign tribunals, with private actors making more complex and creative strategic uses of US procedures across borders. Overall, the grant rate is very high (94 percent in 2015) while the contestation rate is relatively low (22 percent in 2015), calling into question whether US judges are serving as effective discovery gatekeepers for disputes in foreign tribunals.
Part III performs a doctrinal evaluation of the export of American discovery and concludes that US judges are at a severe informational disadvantage when fielding requests from foreign parties. It is assumed that the machinery of domestic discovery can be extended to exported discovery, but the discretion and expertise exercised by federal courts in the domestic context cannot be transferred to discovery requests from foreign parties due to the absence of critical actors and the lack of relevant information. Consequently, federal judges have devised shortcuts for the analyses they conduct, which in turn place a heavy thumb on the scale for granting discovery. Those shortcuts not only undercut congressional intent and the Supreme Court’s interpretation of § 1782, but also pose larger normative problems by eroding comity, adverseness, and basic notions of due process and fairness. By contrast, the discretion and expertise exercised by federal courts in the domestic context is inapposite for discovery requests from foreign tribunals, the vast majority of which are governed by treaty.
Part IV proposes several reforms. I advocate for more active judicial management of § 1782 requests that systematically seeks out the participation of foreign opposing parties and foreign tribunals. I also recommend restructuring § 1782 requests so that each foreign discovery request is no longer filed as a stand-alone US case—a feature that makes these requests uniquely difficult to administer.
Finally, I conclude that this study of § 1782 and its unaccounted-for foreign impacts suggest broader challenges that courts face when disputes straddle multiple legal systems. Litigants and attorneys are adapting to the transnational nature of litigation by strategizing across borders and deploying national procedural tools to their global advantage. Meanwhile, judges are increasingly at an informational disadvantage as they continue to operate within national silos, adjudicating disputes, only parts of which are before them. These challenges call for institutional solutions in the form of court-to-court information sharing and coordination across borders, as well as a shift toward reconceptualizing federal judges as global actors who share overlapping authority with foreign judges and arbitrators.
This Part sets out the mechanics, governing laws, and institutional actors engaged in the export of discovery. The United States has been offering some form of exported discovery since the mid-nineteenth century. Today, 28 USC § 1782 is the key governing statute. It provides the broadest and most direct access to US discovery, and it is also used internally by the Department of Justice to execute discovery requests made through two indirect routes—the traditional system of letters rogatory and the Hague Evidence Convention. This Part describes the three existing paths to US discovery, highlights the centrality of § 1782, and examines the Supreme Court’s interpretation of the statute.
1. Letters rogatory.
The traditional “letter rogatory”—a formal request to perform a judicial act sent from the court of one country, typically through diplomatic channels, to the court of another country49
See Gary B. Born and Peter B. Rutledge, International Civil Litigation in United States Courts 1024 (Wolters Kluwer 5th ed 2011).
See Act of Mar 2, 1855, ch 140, § 2, 10 Stat 630 (empowering federal courts to subpoena witnesses under letters rogatory).
See 28 USC § 1781(a)(1):
The Department of State has power, directly, or through suitable channels . . . to receive a letter rogatory issued, or request made, by a foreign or international tribunal, to transmit it to the tribunal, officer, or agency in the United States to whom it is addressed, and to receive and return it after execution.
See 22 CFR § 92.54 (2019) (noting that letters rogatory requests “rest entirely upon the comity of courts toward each other, and customarily embody a promise of reciprocity”); William S. Dodge, International Comity in American Law, 115 Colum L Rev 2071, 2078 (2015) (defining international comity).
Telephone Interview with Katerina Ossenova, Office of International Judicial Assistance, Department of Justice (Feb 13, 2019) (Ossenova Interview).
Because letters rogatory originate with a request from a foreign court (rather than a party to a foreign suit), the receptivity of that court to US discovery assistance is assured. Letters rogatory have been criticized for being unwieldy, time-consuming, and costly.54
See 22 CFR § 22.1 (2013) (listing $2,275 as the fee for processing a letter rogatory); Donald Earl Childress III, Michael D. Ramsey, and Christopher A. Whytock, Transnational Law and Practice 941 (Wolters Kluwer 2015) (explaining that processing is “frequently [ ] delayed by poor diplomatic relations, bureaucratic inertia, and conflicts with public policy”).
See Andreas F. Lowenfeld, International Litigation and Arbitration 1017 (Thomson West 3d ed 2006).
Ossenova Interview (cited in note 53).
Department of State, Bureau of Consular Affairs, Preparation of Letters Rogatory, archived at https://perma.cc/JCE4-Y6V3.
2. 28 USC § 1782.
During the years following World War II, a surge in international business and other cross-border activities led to a “flood of litigation” in the United States with international elements.58
See Proposed Commission and Advisory Committee on International Rules of Judicial Procedure, S 1890, 85th Cong, 1st Sess, in 103 Cong Rec S 5726 (Apr 16, 1957) (noting that cases with “international ramifications” included “cases in which judicial documents must be served abroad, records or witnesses examined within the territory of a foreign state, or in which proof must be offered of the law prevailing in a foreign jurisdiction”).
Commission and Advisory Committee on International Rules of Judicial Procedure, S Rep No 85-2392, 85th Cong, 2d Sess 2 (1958), reprinted in 1958 USCCAN 5201, 5201–02. See also Burbank, 57 L & Contemp Probs at 110–11 (cited in note 43).
Hickman v Taylor, 329 US 495, 501 (1947).
In some countries like Switzerland, it is a criminal infringement of state sovereignty for a private party to take evidence. S Rep No 85-2392 at 2 (cited in note 58) (“In some jurisdictions, notably Switzerland, there is [a] considerable question whether such a procedure might constitute a penal offense on the assumption that it would be regarded as an illegal usurpation of judicial functions.”).
S 1890, 103 Cong Rec at S 5726 (cited in note 58).
See id.
See S Rep No 85-2392 at 2 (cited in note 59); Childress, Ramsey, and Whytock, Transnational Law and Practice at 940 (cited in note 54); Born and Rutledge, International Civil Litigation at 1025 (cited in note 49).
Congress enacted a number of measures to address these challenges. To facilitate the import of discovery, Congress authorized federal courts to subpoena and to hold in contempt an American citizen or resident in a foreign country.65
See Act of June 25, 1948 §§ 1783–84, 62 Stat 869, 949–50, codified at 28 USC §§ 1783–84.
See Burbank, 57 L & Contemp Probs at 112–13 (cited in note 43) (describing amendments to Rule 28(b) in 1963).
FRCP 34, 45.
To facilitate the export of discovery, Congress passed 28 USC § 1782 in 194868
The 1948 version authorized district courts to depose “any witness residing within the United States [for] use[ ] in any civil action pending in any court in a foreign country with which the United States is at peace.” Act of June 25, 1948, § 1782, 62 Stat at 949.
Act of Oct 3, 1964 § 9, 78 Stat at 997.
The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal. . . . The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. . . . The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.70
7028 USC § 1782(a).
In 1996, the statute was revised to include discovery for use in criminal investigations71
Act of Feb 10, 1996, Pub L No 104-106, 110 Stat 486, 486.
At the time of the 1964 revision, the statute was considered “a major step in bringing the United States to the forefront of nations.”72
S Rep No 88-1580 at 2, 13 (cited in note 34).
Id at 2, 7.
Id at 13.
See, for example, Burbank, 57 L & Contemp Probs at 136 (cited in note 43) (lamenting that § 1782 “reflect[s] the naive view that if the United States were generous, other countries would follow its lead”); Lien, 50 Cath U L Rev at 631 (cited in note 38) (noting that “the invitation [to follow the US example in liberal export] has been declined”).
3. Hague Evidence Convention.
While these domestic policies were being put into place, it was also recognized that the problems arising from international litigation needed an international response. During the late 1960s, the United States led the negotiations for the Hague Evidence Convention, which was adopted in 1970 and entered into force for the United States in 1972.76
Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, 23 UST 2555, 2555–56, TIAS No 7444 (1970) (Hague Evidence Convention).
Hague Evidence Convention Arts 1–2, 23 UST at 2557–58.
Ossenova Interview (cited in note 53).
Except that there are typically no fees associated with a request coming from a Hague Evidence Convention state party. Id.
Id.
The Convention was initially presented to the US Senate and to bar associations as requiring other countries to make concessions while not necessitating significant changes domestically given the existence of the more powerful § 1782.81
See Burbank, 57 L & Contemp Probs at 132–33 (cited in note 43).
There are sixty-three contracting states overall. The Convention has entered into force between the United States and all but three of the other contracting states. See Hague Conference on Private International Law, Hague Evidence Convention – Acceptances of Accessions (Apr 21, 2020), archived at https://perma.cc/QHB8-SPXE.
See, for example, Lowenfeld, International Litigation and Arbitration at 1052 (cited in note 55) (noting that the “conflict over the Hague Evidence Convention appears as a kind of replay of the overall conflict about American-style litigation, and in particular about American-style discovery”).
See Hague Evidence Convention Art 23, 23 UST at 2568 (“A Contracting State may at the time of signature, ratification or accession, declare that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.”). The Practical Handbook on the Operation of the Evidence Convention explains that Article 23 does not apply to all requests for production of documents from common law countries during the pretrial discovery phase, but only to those that are not “sufficiently substantiated so as to avoid ‘fishing expeditions.’” See Hague Convention on Private International Law, Practical Handbook on the Operation of the Evidence Convention (3d ed 2016).
Société Nationale Industrielle Aérospatiale v United States District Court for the Southern District of Iowa, 482 US 522, 542 (1987).
Aérospatiale left judges to conduct an open-ended, “particularized analysis” to determine whether first resort to the Hague Evidence Convention is required. Id at 543–44. See also Maggie Gardner, Parochial Procedure, 69 Stan L Rev 941, 946–47 (2017) (finding that this particularized analysis has resulted in federal judges almost never requiring parties to use the Hague Evidence Convention to obtain foreign discovery from other parties).
See Restatement (Third) of Foreign Relations Law of the United States § 442, Reporters’ Note 1 (1987) (“No aspect of the extension of the American legal system beyond the territorial frontier of the United States has given rise to so much friction as the requests for documents in investigation and litigation in the United States.”).
See Hans Smit, Recent Developments in International Litigation, 35 S Tex L Rev 215, 227 (1994) (“While the ruling that the [Hague Evidence] Convention is nonexclusive is to be welcomed, and a different ruling would have been calamitous, it would nevertheless be preferable to denounce the Convention.”). See also Walter B. Stahr, Discovery Under 28 U.S.C. § 1782 for Foreign and International Proceedings, 30 Va J Intl L 597, 599 (1990) (indicating that “litigation regarding discovery in the United States for use abroad has turned on the proper interpretation and application of section 1782, not on the interpretation of the Hague Evidence Convention”).
These three paths to US discovery now overlap. A foreign tribunal seeking discovery in the United States may either use letters rogatory, the indirect path of the Hague Evidence Convention, or the direct path of § 1782. Similarly, a foreign private actor may either indirectly ask the relevant foreign tribunal to send a request, or directly request it from a federal district court under § 1782, bypassing the foreign tribunal and other intermediary national authorities. Within the United States, all requests are ultimately executed by federal district courts under § 1782.89
See 28 USC § 1782.
Direct requests from foreign private actors have caused the most complications and are the source of nearly all appeals in the past decade.90
See, for example, Kiobel by Samkalden v Cravath, Swaine & Moore LLP, 895 F3d 238, 240–41 (2d Cir 2018), cert denied, 139 S Ct 852 (2019); Grupo Mexico SAB de CV v SAS Asset Recovery, Ltd, 821 F3d 573, 573–75 (5th Cir 2016); Heraeus Kulzer, GmbH v Biomet, Inc, 633 F3d 591, 593–94 (7th Cir 2011); Suzlon Energy Ltd v Microsoft Corp, 671 F3d 726, 727–28 (9th Cir 2011).
Born and Rutledge, International Civil Litigation at 1066 (cited in note 49) (asking whether it is “wise for § 1782 to provide judicial assistance at the request of foreign litigants”).
S Rep No 88-1580 at 7 (cited in note 34).
In 2004, the Supreme Court considered whether sought-after discovery must be discoverable abroad for it to be discoverable under § 1782—a shorthand for determining receptivity that had been adopted by some courts.93
See In re Application of Asta Medica, S.A., 981 F2d 1, 7 (1st Cir 1992); In re Request for Assistance from Ministry of Legal Affairs of Trinidad and Tobago, 848 F2d 1151, 1156 (11th Cir 1988). But see Advanced Micro Devices, Inc v Intel Corp, 292 F3d 664, 668–69 (9th Cir 2002) (rejecting a foreign discoverability requirement); In re Bayer AG, 146 F3d 188, 193–96 (3d Cir 1998) (same); Euromepa S.A. v R. Esmerian, Inc, 51 F3d 1095, 1099–1100 (2d Cir 1995) (same).
542 US 241 (2004).
Id at 250–54.
See European Commission Brief at *4, 15–16 (cited in note 28).
Id at *2.
See Brief of the Chamber of Commerce of the United States as Amicus Curiae In Support of Petitioner, Intel Corp v Advanced Micro Devices, Inc, No 02-572, *1–3 (US filed Nov 15, 2002) (available on Westlaw at 2003 WL 23112944); Brief of Product Liability Advisory Council, Inc as Amicus Curiae In Support of Petitioner, Intel Corp v Advanced Micro Devices, Inc, No 02-572, *2–3 (US filed Dec 31, 2003) (available on Westlaw at 2003 WL 23112943). See also Brief Amicus Curiae of the National Association of Manufacturers in Support of Petitioner, Intel Corp v Advanced Micro Devices, Inc, No 02-572, *8–11 (US filed Nov 15, 2002) (available on Westlaw at 2002 WL 32157392).
See Brief for the United States as Amicus Curiae Supporting Affirmance, Intel Corp v Advanced Micro Devices, Inc, No 02-572, *1–2, 11–13 (US filed Jan 30, 2004) (available on Westlaw at 2004 WL 214306).
The Supreme Court reasoned that a foreign discovery restriction does not necessarily translate into an objection to exported discovery from the United States.100
See Intel, 542 US at 261–62.
Id at 264–65.
See id at 262.
See Advanced Micro Devices, Inc v Intel Corp, 2004 WL 2282320, *2–3 (ND Cal).
Since the Supreme Court’s decision in 2004, lower courts’ implementation of § 1782 have continued to fracture along many lines. Most prominently, the Courts of Appeals now disagree on whether the statute can be used to compel discovery in aid of foreign commercial arbitrations. The Seventh Circuit recently held that § 1782 does not extend to private international commercial arbitrations, placing it in agreement with the Second and Fifth Circuits and in conflict with the Fourth and Sixth Circuits.104
See Servotronics, Inc v Rolls-Royce PLC, No 19-1847, slip op at *15 (7th Cir Sept 22, 2020); In re Guo, 965 F3d 96, 104–06 (2d Cir 2020); El Paso Corp v La Comision Ejecutiva Hidroelectrica Del Rio Lempa, 341 F Appx 31, 33–34 (5th Cir 2009); In re Application to Obtain Discovery for Use in Foreign Proceedings, 939 F3d 710, 717–730 (6th Cir 2019); Servotronics, Inc v Boeing Co, 954 F3d 209, 210 (4th Cir 2020).
See Sergeeva v Tripleton International Ltd, 834 F3d 1194, 1200 (11th Cir 2016) (holding that § 1782 reaches “responsive documents and information located outside the United States” so long as it is within the “possession, custody, or control of” the discovery target); In re del Valle Ruiz, 939 F3d 520, 524 (2d Cir 2019) (holding that “there is no per se bar to the extraterritorial application of § 1782”). But see Pinchuk v Chemstar Products LLC, 2014 WL 2990416, *4 (D Del) (quashing a discovery request for documents located abroad).
This development has gained traction since the Second Circuit held in 2017 that § 1782 “does not prevent an applicant who lawfully has obtained discovery under the statute with respect to one foreign proceeding form using the discovery elsewhere unless the district court orders otherwise.” In re Accent Delight International Ltd, 869 F3d 121, 135 (2d Cir 2017).
See Part III.C.
This Part presents the findings of the first nationwide study of foreign discovery requests in federal district courts. Despite anecdotal reports that foreign discovery requests have experienced “a groundswell of popularity,”108
Globalization Spurs Use of USC 1782 for U.S. Discovery in Foreign Disputes (Bloomberg Law, Feb 17, 2011), archived at https://perma.cc/L56T-2TL7.See also Geoffrey Kertesz, Section 1782: American Dream . . . or Nightmare?, 22 Trusts & Trustees 293, 297 (2016) (“If the reported cases are any indication, use of the statute is on the rise.”).
The number of discovery requests for use in foreign civil proceedings received by district courts has indeed surged, approximately quadrupling between 2005 and 2017. Their countries of origin have diversified, suggesting that the historical concern about procedural differences between the United States and the civil law countries within Western Europe and South America may not be as central as it used to be. Meanwhile, there is a growing need to understand legal systems in Asia and Eastern Europe.
The vast majority of requests fall into two categories: indirect requests from foreign courts and direct requests from foreign parties. In other words, foreign parties now have a more direct relationship with US district courts than do foreign tribunals. Moreover, demand from foreign parties now overshadows demand from foreign tribunals in both number and complexity of requests. Whereas foreign tribunal requests are fairly straightforward, homogenous, and most frequently connected to family law matters, foreign party requests are more sophisticated, varied, and most frequently connected to commercial matters. These divergences suggest that there are different dynamics at play in these two sets of requests. Whether US judges are serving as effective discovery gatekeepers in each type of request is examined in the next Part.
Analysis of federal dockets is also illuminating for what it cannot reveal. Requests are typically considered ex parte, without informing or including the foreign tribunal or foreign opposing party, though occasionally notice is given in haphazard ways. For reasons explained below, it was not possible to systematically track when notification was provided to the foreign tribunal or foreign opposing party and therefore when a foreign tribunal was aware that a US discovery request had been made. Because I could not track foreign tribunal awareness of a US discovery request being made by a foreign party, it was also not possible to determine how often and which foreign courts tended to welcome or resist sought-after discovery. Finally, docket analysis provides an incomplete picture of when multiple US discovery requests are made for the same foreign proceeding, and no information about what happens after a request is granted. Federal judges make foreign discovery decisions in the absence of this information.
I compiled a dataset composed of over three thousand discovery requests, filed between January 1, 2005 and December 31, 2017, seeking compelled discovery under § 1782 for use in foreign proceedings. Since § 1782 authorizes discovery requests for foreign civil and criminal proceedings, this initial dataset included both. Appendix A describes the process I used to build the dataset. Briefly, I relied on the Public Access to Court Electronic Records (PACER) system—a mandatory electronic docketing system that provides access to all actions filed in federal district courts nationwide.109
Other scholars have noted the sampling bias stemming from empirical efforts that rely on Westlaw or Lexis searches. These problems are particularly worrisome for studying low-profile, routine matters such as § 1782 discovery orders, which tend to be unpublished. See, for example, David Freeman Engstrom, The Twiqbal Puzzle and Empirical Study of Civil Procedure, 65 Stan L Rev 1203, 1214–15 (2013) (discussing incompleteness in Westlaw’s and Lexis’s databases); David A. Hoffman, Alan J. Izenman, and Jeffrey R. Lidicker, Docketology, District Courts, and Doctrine, 85 Wash U L Rev 681, 686 (2007) (same).
Analysis of the sample shows that approximately one-third (919) of all requests were connected to criminal proceedings abroad (“criminal requests”), while approximately two-thirds (2,070) were connected to civil proceedings abroad (“civil requests”). Breaking down the requests by year shows that the number of civil requests has grown rapidly, approximately quadrupling between 2005 (49 requests) and 2017 (208 requests). While it is not possible to determine from docket analysis the causes of this rapid rise, there are several possible reasons for it: (1) an increase in cross-border activity leading to more disputes abroad for which evidence may be gathered in the United States;110
While different indices for globalization differ on this point, the KOF Globalisation Index, which measures globalization along economic, social, and political dimensions, shows a moderate increase in globalization for the United States during the years 2005 through 2016 (the latest year for which data is available). See KOF Swiss Economic Institute, KOF Globalisation Index, archived at https://perma.cc/6RQL-95VP.
Thanks to Zach Clopton for this insight.
There is an inverse trend for criminal requests brought under § 1782,112
See Appendix C, Table 6.
As noted in Part I, § 1782 was amended in 1996 to encompass discovery requests related to criminal investigations. In 2009, Congress enacted 18 USC § 3512, which authorizes federal judges to “issue such orders as may be necessary to execute a request from a foreign authority for assistance” with criminal matters. Foreign Evidence Request Efficiency Act of 2009, Pub L No 111-79, 123 Stat 2087 (2009), codified at 18 USC § 3512. Correspondence with the Department of Justice confirmed that, since 2009, the agency has gradually reduced reliance on § 1782 for executing criminal requests and no longer relies on the statute for that purpose. Correspondence with a member of the Department of Justice’s Office of International Affairs (Feb 20, 2019) (on file with author).
See Part III.C.1 (discussing the significance of these refiled cases).
Figure 1: Estimated Number of Civil Requests, 2005–2017115
Since the random sample was drawn without replacement from a finite population of comparable size, I modeled it as a random draw from a hypergeometric random variable and used this distribution to calculate 95 percent confidence intervals.
Approximately half of civil requests are sent to the Southern District of New York, the Southern and Middle Districts of Florida, and the Northern and Central Districts of California,116
See Appendix C, Table 7. Concentration of civil requests in these federal district courts is not surprising given that American, European, and Asian financial institutions have historically been subject to personal jurisdiction in New York, Latin American financial institutions have traditionally been subject to jurisdiction in Florida, and many technology companies are subject to jurisdiction in California. Thanks to Kevin Benish for this observation.
Fifty-eight of the ninety-four district courts in the federal system received at least one civil request, while thirty-six district courts did not receive any.
I examined basic characteristics of civil requests: who requested them, who they targeted, the nature of the foreign tribunal, the nature of the foreign proceeding for which they were requested, and the country of origin.
1. Requestor.
The vast majority of foreign discovery requests come either indirectly from foreign tribunals through OIJA (approximately 40 percent) or directly from foreign parties under § 1782 (approximately 55 percent). For the most part, foreign tribunals continue to seek judicial assistance indirectly through the Hague Evidence Convention and letters rogatory despite having direct access to federal courts.118
In a tiny number of actions, requests originating from tribunals are filed directly with a district court (approximately 1.1 percent) or are conveyed to the district court by a foreign party (approximately 2.8 percent).
The Supreme Court interpreted “interested person[s]” from the statutory language of § 1782 to “reach[ ] beyond the universe of persons designated ‘litigant.’” Intel, 542 US at 256.
Figure 2: Estimated Number of Civil Requests from Foreign Tribunals and Foreign Parties, 2005–2017120
Since the random sample was drawn without replacement from a finite population of comparable size, I modeled it as a random draw from a hypergeometric random variable and used this distribution to calculate 95 percent confidence intervals.
2. Target.
The vast majority of civil requests seek discovery from nonparties to the proceeding abroad. This is true for requests from foreign tribunals (approximately 85 percent) and foreign parties (approximately 88 percent), and remains consistent over the study period. Nonparty targets include banks, Internet and social media companies, as well as law firms. The prominence of nonparties as targets is in part because nonparties located in the United States cannot be reached by the foreign court where the case is pending, and in part because discovery targeting nonparties is favored under Intel, so it is advantageous to target a US nonparty even if a foreign party holds the same information.121
See Part III for discussion.
3. Nature of foreign tribunal and proceeding.
Overall, requests from foreign tribunals are more homogeneous than those from foreign parties. Virtually all requests from foreign tribunals seek discovery for use in one pending litigation before a foreign court. Requests from foreign parties are more varied. The vast majority are for use before foreign courts (approximately 90 percent), but a steady number are for use in commercial arbitrations (approximately 9.9 percent) and a smaller number are for use before foreign regulatory agencies (approximately 4 percent) and investor state arbitrations (approximately 2.5 percent).122
Requests that sought discovery for use in multiple forums were counted toward each category, which is why the percentages add up to more than 100 percent. I double counted because each forum is independently significant.
Year-by-year data are on file with author.
There is significant breadth in the substantive merits issues in dispute in the foreign civil proceedings. Requests from foreign tribunals are concentrated primarily in family law (approximately 52 percent), followed by contract (approximately 15 percent) and employment law (approximately 12 percent). These substantive areas have remained consistently prevalent for tribunal requests over the study period.124
See Appendix B for a full list of the substantive area categories.
Year-by-year data are on file with author.
Born and Rutledge, International Civil Litigation at 967–68 (cited in note 49) (noting that substantive claims involving antitrust, patent, product liability, and other similar cases often result in “sweeping” discovery requests compared to routine contract or tort disputes).
4. Country of foreign proceeding.
As the number of civil requests has increased over the years, so too has the diversity of countries from which they originate.127
See Appendix C, Figure 4 showing and explaining a graph visualizing a rise in Shannon’s entropy, calculated on the mixture of countries over the study period.
Breaking down the countries by region, legal system type, and Hague Evidence Convention status128
See Appendix B for a full list of each of these categories.
Year-by-year data are on file with author.
Requests that sought discovery for use in multiple countries with different legal system types were counted toward each category, which is why the percentages add up to more than 100 percent. I double counted because each legal system type is independently significant.
Requests that sought discovery for use in multiple countries with different Hague Evidence Convention statuses were counted toward each category, which is why the percentages add up to more than 100 percent. I double counted because each Convention status is independently significant.
Where a request sought discovery for use in countries in multiple regions, it was counted toward each region, which is why the percentages add up to more than 100 percent. To calculate the 95 percent confidence intervals, I first used the hypergeometric distribution to estimate a 95 percent confidence interval for the number of (for example) tribunal requests in the overall population. I then used the hypergeometric distribution a second time to estimate how many requests of this particular sort were made by tribunals. I took a conservative approach and used the lower bound for the number of tribunal requests to calculate the lower bound for the number of requests made by tribunals, etc. This method errs on the side of wider confidence intervals.
| Requests from Foreign Tribunals | Requests from Foreign Tribunals |
| Requests from Foreign Parties | Requests from Foreign Parties |
| Requests from Foreign Tribunals | Number 95% CI |
| Requests from Foreign Parties | >Percentage 95% CI |
| Number 95% CI | |
| Percentage 95% CI |
| Americas | |
| Requests from Foreign Tribunals | 565483–660 |
| Requests from Foreign Parties | 62% 53%–73% |
| 273 219–343 | |
| 23% 18%–29% |
| Caribbean | |
| Requests from Foreign Tribunals | 0 0–11 |
| Requests from Foreign Parties | 0% 0%–1.2% |
| 60.7 40–96 | |
| 5.1% 3.3%–8% |
| Western Europe | |
| Requests from Foreign Tribunals | 166 126–222 |
| Requests from Foreign Parties | 18% 14%–24% |
| 732 639–837 | |
| 61% 53%–70% |
| Eastern Europe | |
| Requests from Foreign Tribunals | 112 81–158 |
| Requests from Foreign Parties | 12% 8.9%–17% |
| 53.9 35–87 | |
| 4.5% 2.9%–7.2% |
| Middle East | |
| Requests from Foreign Tribunals | 38.3 23–67 |
| Requests from Foreign Parties | 4.2% 2.5%–7.4% |
| 74.2 51–112 | |
| 6.2% 4.2%–9.3% |
| Asia | |
| Requests from Foreign Tribunals | 25.5 14–50 |
| Requests from Foreign Parties | 2.8% 1.5%–5.5% |
| 209 163–271 | |
| 17% 14%–23% |
| Africa | |
| Requests from Foreign Tribunals | 3.2 1–17 |
| Requests from Foreign Parties | 0.35% 0.11%–1.9% |
| 20.2 11–43 | |
| 1.7% 0.92%–3.6% |
| Requests from Foreign Tribunals | Requests from Foreign Parties | |||
|---|---|---|---|---|
| Number 95% CI |
>Percentage 95% CI |
Number 95% CI |
Percentage 95% CI |
|
| Americas | 565483–660 | 62% 53%–73% |
273 219–343 |
23% 18%–29% |
| Caribbean | 0 0–11 |
0% 0%–1.2% |
60.7 40–96 |
5.1% 3.3%–8% |
| Western Europe |
166 126–222 |
18% 14%–24% |
732 639–837 |
61% 53%–70% |
| Eastern Europe |
112 81–158 |
12% 8.9%–17% |
53.9 35–87 |
4.5% 2.9%–7.2% |
| Middle East | 38.3 23–67 |
4.2% 2.5%–7.4% |
74.2 51–112 |
6.2% 4.2%–9.3% |
| Asia | 25.5 14–50 |
2.8% 1.5%–5.5% |
209 163–271 |
17% 14%–23% |
| Africa | 3.2 1–17 |
0.35% 0.11%–1.9% |
20.2 11–43 |
1.7% 0.92%–3.6% |
Where a request sought discovery for use in countries that fell into multiple categories of any attribute, it was counted toward each category, which is why the percentages sometimes add up to more than 100 percent. To calculate the 95 percent confidence intervals, I first used the hypergeometric distribution to estimate a 95 percent confidence interval for the number of (for example) tribunal requests in the overall population. I then used the hypergeometric distribution a second time to estimate how many requests of this particular sort were made by tribunals. I took a conservative approach and used the lower bound for the number of tribunal requests to calculate the lower bound for the number of requests made by tribunals, etc. This method errs on the side of wider confidence intervals.
| Requests from Foreign Tribunals | Requests from Foreign Tribunals |
| Requests from Foreign Parties | Requests from Foreign Parties |
| Requests from Foreign Tribunals | Number 95% CI |
| Requests from Foreign Parties | Percentage 95% CI |
| Number 95% CI | |
| Percentage 95% CI |
|
134
For a list of countries with each legal system type, see AppendixB. |
| Common Law | |
| Requests from Foreign Tribunals | 28.7 17–54 |
| Requests from Foreign Parties | 3.2% 1.9%–5.9% |
| 525 445–620 | |
| 44% 37%–52% |
| Civil Law | |
| Requests from Foreign Tribunals | 846 759–940 |
| Requests from Foreign Parties | 93% 83%–98% |
| 553 470–650 | |
| 46% 39%–54% |
| Mixed/Other | |
| Requests from Foreign Tribunals | 35.1 21–63 |
| Requests from Foreign Parties | 3.9% 2.3%–6.9% |
| 210 163–273 | |
| 17% 14%–23% |
|
135
For a list of countries with each Hague Evidence Convention status, see id. |
| In Force | |
| Requests from Foreign Tribunals | 779 >690–878 |
| Requests from Foreign Parties | 86% >76%–97% |
| 745 652–851 | |
| 62% 54%–71% |
| Not in Force | |
| Requests from Foreign Tribunals | 131 97–181 |
| Requests from Foreign Parties | 14% 11%–20% |
| 519 441–613 | |
| 43% 37%–51% |
| Requests from Foreign Tribunals | Requests from Foreign Parties | |||
|---|---|---|---|---|
| Number 95% CI |
Percentage 95% CI |
Number 95% CI |
Percentage 95% CI |
|
|
134
For a list of countries with each legal system type, see AppendixB. |
||||
| Common Law | 28.7 17–54 |
3.2% 1.9%–5.9% |
525 445–620 |
44% 37%–52% |
| Civil Law | 846 759–940 |
93% 83%–98% |
553 470–650 |
46% 39%–54% |
| Mixed/Other | 35.1 21–63 |
3.9% 2.3%–6.9% |
210 163–273 |
17% 14%–23% |
|
135
For a list of countries with each Hague Evidence Convention status, see id. |
||||
| In Force | 779 >690–878 |
86% >76%–97% |
745 652–851 |
62% 54%–71% |
| Not in Force | 131 97–181 |
14% 11%–20% |
519 441–613 |
43% 37%–51% |
Breaking down the countries by rule-of-law rating,136
As noted in Appendix B, I employed the World Justice Project’s Rule of Law Index. Like other rule-of-law indexes, such as the Worldwide Governance Indicators, Freedom House’s Freedom in the World Index, and the Heritage Foundation’s Index of Economic Freedom, the World Justice Project’s Rule of Law Index has been criticized for conceptual and methodological problems. Without overlooking or discounting these problems, I use the World Justice Project’s Rule of Law Index as an imperfect way to generate a rough picture of the types of legal systems with which federal district courts are interacting in foreign discovery requests, and whether that picture is different for foreign tribunal versus foreign party requests.
See Appendix B (discussing rule-of-law score categories and data).
These findings suggest that US courts are now interacting with a larger spectrum of legal systems worldwide, as opposed to the relatively narrow focus on the civil law systems within Western Europe and South America when the Hague Evidence Convention was negotiated during the 1960s.138
See Burbank, 57 L & Contemp Probs at 132 (cited in note 43) (explaining that the Convention was “[i]ntended . . . to bridge gaps between the civil law and common law systems”).
Where a request sought discovery for use in countries that fell into multiple categories of any attribute, it was counted toward each category, which is why the percentages sometimes add up to more than 100 percent. To calculate the 95 percent confidence intervals, I first used the hypergeometric distribution to estimate a 95 percent confidence interval for the number of (for example) tribunal requests in the overall population. I then used the hypergeometric distribution a second time to estimate how many requests of this particular sort were made by tribunals. I took a conservative approach and used the lower bound for the number of tribunal requests to calculate the lower bound for the number of requests made by tribunals, etc. This method errs on the side of wider confidence intervals.
| Requests from Foreign Tribunals | Requests from Foreign Tribunals |
| Requests from Foreign Parties | Requests from Foreign Parties |
| Requests from Foreign Tribunals | Number 95% CI |
| Requests from Foreign Parties | Percentage 95% CI |
| Number 95% CI | |
| Percentage 95% CI |
| Quartile 4 | |
| Requests from Foreign Tribunals | 101 >73–142 |
| Requests from Foreign Parties | 33% 24%–47% |
| 224 180–279 | |
| 57% 46%–71% |
| Quartile 3 | |
| Requests from Foreign Tribunals | 95.3 68–136 |
| Requests from Foreign Parties | 31% 22%–45% |
| 59.2 39–92 | |
| 15% 9.9%–23% |
| Quartile 2 | |
| Requests from Foreign Tribunals | 31.8 19–57 |
| Requests from Foreign Parties | 10% 6.3%–19% |
| 28 16–53 | |
| 7.1% 4%–13% |
| Quartile 1 | |
| Requests from Foreign Tribunals | 72.2 50–108 |
| Requests from Foreign Parties | 24% 16%–36% |
| 37.4 23–65 | |
| 9.4% 5.8%–16% |
| No Rule-of-Law Score | |
| Requests from Foreign Tribunals | 2.9 1–15 |
| Requests from Foreign Parties | 0.95% 0.33%–4.9% |
| 87.2 61–126 | |
| 22% 15%–32% |
| Requests from Foreign Tribunals | Requests from Foreign Parties | |||
|---|---|---|---|---|
| Number 95% CI |
Percentage 95% CI |
Number 95% CI |
Percentage 95% CI |
|
| Quartile 4 | 101 >73–142 |
33% 24%–47% |
224 180–279 |
57% 46%–71% |
| Quartile 3 | 95.3 68–136 |
31% 22%–45% |
59.2 39–92 |
15% 9.9%–23% |
| Quartile 2 | 31.8 19–57 |
10% 6.3%–19% |
28 16–53 |
7.1% 4%–13% |
| Quartile 1 | 72.2 50–108 |
24% 16%–36% |
37.4 23–65 |
9.4% 5.8%–16% |
| No Rule-of-Law Score | 2.9 1–15 |
0.95% 0.33%–4.9% |
87.2 61–126 |
22% 15%–32% |
Finally, I examined the outcome of requests. I used two crude proxies to gauge the complexity of requests: the number of docket entries and the number of orders.140
See Appendix B.
See id.
Foreign party requests are more complex and require more judicial activity to resolve than those from foreign tribunals. But both sets of requests are resolved relatively quickly and with minimal judicial activity. Requests from foreign tribunals are typically resolved with one order—the order granting or denying the request—and such requests were granted approximately 98.1 percent of the time.142
This grant rate is calculated by taking the number of cases over the sum of the number of cases granted and the number of cases denied. Cases that did not reach resolution are not included in the denominator. See Appendix C, Tables 14 and 15.
See id.
See Appendix C, Table 15.
See Appendix C, Table 14.
While it would be illuminating, it is not possible to compare these grant rates to those of domestic discovery requests. This is first and foremost because domestic discovery is typically negotiated between the parties at the outset and does not generate a record in the docket unless there is a disagreement and a motion to the court to resolve it. Additionally, I have not found any empirical research quantifying the rate at which motions to compel or motions for protective orders are granted domestically.
Figure 3: Estimated Grant Rates of Civil Requests
For 2015 only, I tracked the outcome and contestation status—meaning whether the request was challenged146
A request may be challenged at the outset if notice was provided. More likely, a request was initially granted ex parte and then subsequently challenged in the form of a motion to quash, motion to vacate, motion to stay, motion for reconsideration, or a motion to compel from the requestor that is opposed. A request may be challenged by the target of discovery, whether party or nonparty to the foreign proceeding, or it may be challenged by the nontarget opposing party. I did not count entries of stipulated protective orders or other requests for confidentiality agreements as contestation. See Appendix B.
These figures are not estimates, as they are based on all requests in 2015.
|
Overall Grant Rate148 148
The grant rate is calculated by taking the number of granted requests over the sum of the number of granted requests and denied requests. Requests that did not reach resolution are not included in the denominator. | |
|
Requests from |
98.9% |
|
Requests from |
90% |
|
All Requests |
94% |
|
Contestation Rate149 149
The contestation rate is calculated by taking the number of challenged requests over the sum of the number of challenged requests and unchallenged requests (including requests involving a stipulated protective order or other confidentiality agreement). | |
|
Requests from |
3.3% |
|
Requests from |
37% |
|
All Requests |
22% |
|
Grant Rate for | |
|
Requests from |
67%150 150
There were only three contested tribunal requests and one was denied. |
|
Requests from |
82.4% |
|
All Requests |
81.1% |
|
Grant Rate for | |
|
Requests from |
100% |
|
Requests from |
93.9% |
|
All Requests |
97.3% |
|
Requests from |
Requests from |
All Requests |
|
|---|---|---|---|
|
Overall Grant Rate148 148
The grant rate is calculated by taking the number of granted requests over the sum of the number of granted requests and denied requests. Requests that did not reach resolution are not included in the denominator. |
98.9% |
90% |
94% |
|
Contestation Rate149 149
The contestation rate is calculated by taking the number of challenged requests over the sum of the number of challenged requests and unchallenged requests (including requests involving a stipulated protective order or other confidentiality agreement). |
3.3% |
37% |
22% |
|
Grant Rate for |
67%150 150
There were only three contested tribunal requests and one was denied. |
82.4% |
81.1% |
|
Grant Rate for |
100% |
93.9% |
97.3% |
Logistic regression consistently indicated a strong negative correlation between a request being contested and its likelihood of being granted.151
To identify the best logistic regression model, I followed a standard best-subset approach: for each model size, I fitted a model with every possible combination of variables and chose the model with the lowest residual deviance. To select the appropriate model size and to avoid overfitting, I then performed cross-validation and considered two metrics that penalize large models, AIC and BIC. BIC and cross-validation both pointed toward a one-variable model containing only contestation, whereas AIC pointed toward a three-variable model containing contestation, target identity, and numerosity of foreign proceedings for which discovery was requested. I additionally performed Firth logistic regression, a penalized form of regression designed to address the problems associated with separated or nearly separated data. See Georg Heinze, A Comparative Investigation of Methods for Logistic Regression with Separated or Nearly Separated Data, 25 Statist Med 4216, 4224–25 (2006). The Firth regression suggested a three-variable model containing contestation, target identity, and the legal system type of the country from which the request originated.
In the one-variable model containing contestation, the absence of contestation was associated with a 2.17 increase in the log-odds of a request being granted, significant at the level of p = 0.001. In the Firth three-variable model, contestation was associated with a 1.72 increase in the log-odds of a request being granted, significant at the level of p = 0.015.
Given the problematic nature of the 2015 data set, however, this should not be taken as evidence against an association between these variables and the likelihood of a request being granted. The 2015 data set had a strikingly high grant rate (over 94 percent), perfect separation along one variable, and near perfect separation along another. Several covariates strongly correlated with each other as well.
While docket analysis can shed light on the nature of foreign discovery requests and their outcomes in federal district courts, there are several critical pieces of information that docket analysis cannot reveal. First, it cannot show whether the foreign opposing party was notified about discovery requests coming from foreign parties. Requests are typically considered ex parte at the outset.154
See Part III.C.1.
For example, notice might be given informally as a matter of courtesy or incidentally through communication between the target and the foreign opposing party. Id.
Second, for similar reasons, and also discussed in Part III, it was not possible to systematically track whether the foreign tribunal received notification of the request. Without this information, I was unable to differentiate lack of awareness that the discovery request had been made from lack of resistance to US discovery. Consequently, it was not possible to look for any overarching patterns in the types of foreign tribunals that are more receptive or opposed to US discovery.
Third, docket analysis provides incomplete information about when multiple discovery requests are made in the United States for the same foreign proceeding. Unlike domestic discovery requests that are a part of a larger plenary dispute and overseen by the same judge, each foreign discovery request is its own stand-alone action. Consequently, a single proceeding abroad can generate many discovery requests in different US district courts, each before a different judge. Sometimes, these requests are consolidated and other times they are not.
Finally, docket analysis does not provide systematic information about what happens after discovery is compelled—including whether the requested discovery was ultimately produced and submitted to the foreign tribunal, whether the foreign tribunal took it under consideration, and whether it affected the outcome of the foreign proceeding. In Intel, the Supreme Court asserted that district and foreign courts could, respectively, condition grants and acceptances of discovery on reciprocal exchanges of information between the foreign parties to maintain an appropriate measure of parity.156
See Intel, 542 US at 262.
Although I did not systematically track whether granted discovery requests were conditioned on a reciprocal flow of information, reciprocity is extremely rare. A few examples are discussed below in Part III.C.3.
To find this information, one would have to interview those to whom compelled US discovery was granted and track down each foreign proceeding abroad.
Having characterized the rise in foreign demand for US discovery, the differences between demand from foreign tribunals and foreign parties, the high rates at which both types of requests are granted, and the key unknowns, this Part now evaluates doctrinally whether US judges are serving as effective discovery gatekeepers for foreign proceedings. All foreign discovery requests for use in civil disputes abroad are executed under § 1782, regardless of whether they began as a letters rogatory, a request under the Hague Evidence Convention, or a § 1782 application brought directly by a foreign party.159
See Part I.B.
See, for example, Texas Keystone, Inc v Prime Natural Resources, Inc, 694 F3d 548, 554 (5th Cir 2012); Government of Ghana v ProEnergy Services, LLC, 677 F3d 340, 343 (8th Cir 2012); Heraeus Kulzer, GmbH v Biomet, Inc, 633 F3d 591, 597 (7th Cir 2011).
Heraeus Kulzer, 633 F3d at 597. See also 28 USC § 1782 (“To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.”).
Drawing from the empirical findings above as well as district court proceedings and appellate court decisions, I argue that the machinery developed for domestic discovery is both improperly applied to—and ill-equipped to manage the challenges of—exported discovery. The blueprint for domestic discovery falls short in distinctive ways when applied to requests from foreign tribunals. In entertaining requests from foreign tribunals, federal courts have a greatly reduced justification for exercising the discretion they typically wield under the FRCP or under Intel’s discretionary factors. That is because tribunal requests are not adversarial, and there is no uncertainty surrounding whether the foreign tribunal is receptive to US discovery, given that the tribunal is making the request.
By contrast, requests from foreign parties are—and should be—adversarial between the two contending parties in the foreign dispute. But much of the time they are not, or they involve some but not all of the relevant stakeholders, resulting in a distorted adversarialism and missing information. I identify who the relevant stakeholders are and the information that each uniquely possesses, in the absence of which district courts are unable to undertake the analysis required under the FRCP or under Intel’s discretionary factors. Because judges are at a severe informational disadvantage when fielding requests from foreign parties, they have developed more manageable heuristics that place a heavy thumb on the scale for granting applications, which in turn threatens to undermine foreign litigation as well as universal and American litigation values.
Part III.A examines the underlying tenets of domestic discovery. Parts III.B and III.C look, respectively, at how foreign tribunal requests and foreign party requests deviate from this framework.
At the core of American civil litigation is a litigant-driven system for obtaining information from adverse parties that aims to give both sides “the fullest possible knowledge of the issues and facts before trial.”162
Hickman v Taylor, 329 US 495, 501 (1947).
See United States v Procter & Gamble Co, 356 US 677, 682 (1958) (“Modern instruments of discovery . . . make a trial less a game of blindman’s buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.”); Hickman, 329 US at 507 (“Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.”); John H. Beisner, Discovering a Better Way: The Need for Effective Civil Litigation Reform, 60 Duke L J 547, 556–63 (2010).
See Paul W. Grimm and David S. Yellin, A Pragmatic Approach to Discovery Reform: How Small Changes Can Make a Big Difference in Civil Discovery, 64 SC L Rev 495, 505–07 (2013) (noting “a lack of active judicial management” despite general agreement that active judicial involvement in discovery “leads to better . . . results”).
The FRCP give litigants broad authority to obtain from each other “discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.”165
FRCP 26(b)(1).
Id.
See Wayne D. Brazil, The Adversary Character of Civil Discovery: A Critique and Proposals for Change, 31 Vand L Rev 1295, 1304 (1978):
Modern discovery [ ] has removed most of the decisive plays from the scrutiny of the court. Because so many civil cases are settled before trial and because the conduct of attorneys is subject only to fitful and superficial judicial review during the discovery stage, much of the decisive gamesmanship of modern litigation takes place in private settings.
See FRCP 26(c)(1) (providing that a party “from whom discovery is sought” can move for a protective order following an effort to resolve the dispute without court action; protective order can be issued to protect from “annoyance, embarrassment, oppression, or undue burden or expense”); FRCP 37 (providing that a party may move for an order to compel discovery following an effort to obtain the discovery without court action).
The current regime is the result of changes made over the past few decades in response to criticisms that discovery has been used abusively.169
See FRCP 26, Notes of the Advisory Committee on Rules—1980 Amendment, Note to Subdivision (f) (“There has been widespread criticism of abuse of discovery.”); FRCP 26, Notes of the Advisory Committee on Rules—1983 Amendment (“Excessive discovery and evasion or resistance to reasonable discovery requests pose significant problems.”). See also Herbert v Lando, 441 US 153, 179 (1979) (Powell concurring) (expressing concern that federal discovery rules are “not infrequently exploited to the disadvantage of justice”).
See, for example, Matthew T. Ciulla, Note, A Disproportionate Response? The 2015 Proportionality Amendments to Federal Rule of Civil Procedure 26(b), 92 Notre Dame L Rev 1395, 1405–09 (2017) (noting wide differences in opinion concerning the need for discovery reform).
See Bell Atlantic Corp v Twombly, 550 US 544, 558–60 (2007) (discussing the cost of discovery); Ashcroft v Iqbal, 556 US 662, 684–86 (2009) (same).
FRCP 26, Notes of the Advisory Committee on Rules—1983 Amendment, Note to Subdivision (g).
FRCP 26, Notes of the Advisory Committee on Rules—2015 Amendment.
See id (noting that the factors may not be fully understood at the outset and that the requesting party may not know about the burden or expense, while the requested party may not know about the importance of the sought-after discovery for resolving the underlying issues).
See, for example, Moore v Ford Motor Co, 755 F3d 802, 808 (5th Cir 2014) (explaining that a judge’s discovery decision is reversible only if it is “arbitrary or clearly unreasonable” and results in “prejudice”).
See, for example, Ciulla, Note, 92 Notre Dame L Rev at 1402 (cited in note 170) (noting that the impact of amendments has not been as great as expected); Scott A. Moss, Litigation Discovery Cannot Be Optimal but Could Be Better: The Economics of Improving Discovery Timing in a Digital Age, 58 Duke L J 889, 889–90 (2009) (noting that the “proportionality rules are impossible to apply effectively”).
See Jonah B. Gelbach and Bruce H. Kobayashi, The Law and Economics of Proportionality in Discovery, 50 Ga L Rev 1093, 1114–16 (2016).
The FRCP also allow parties to seek compelled discovery from nonparties178
See FRCP 45(a)(1)(A)(iii) (stipulating that a subpoena may compel a person to “attend and testify; produce designated documents, electronically stored information, or tangible things in that person’s possession, custody, or control”).
See FRCP 30(b)(1), 45(a)(4).
See FRCP 45(a)(4), (b) (setting out service requirements).
See FRCP 45(a)(2).
See FRCP 45(a)(1)–(2).
See FRCP 45, Notes of the Advisory Committee on Rules—2013 Amendment, Note to Subdivision (f).
See id.
When a district court receives a discovery request from a foreign tribunal, its role bears little resemblance to discovery within the United States. Under long-standing custom, these requests are typically considered on an ex parte basis.185
See In re Letters Rogatory from Tokyo District, Tokyo, Japan, 539 F2d 1216, 1219 (9th Cir 1976) (“Letters Rogatory are customarily received and appropriate action taken with respect thereto ex parte.”).
James E. Pfander and Daniel D. Birk, Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction, 124 Yale L J 1346, 1355, 1390–91 (2015).
Id at 1391.
See In re Premises Located at 840 140th Ave NE, Bellevue, Wash, 634 F3d 557, 566 (9th Cir 2011) (likening a discovery request from the Russian government to “an order enforcing the subpoenas of independent administrative agencies, an order granting a subpoena in aid of an extradition proceeding, and an order to appear before the Internal Revenue Service”).
Pfander and Birk, 124 Yale L J at 1379 (cited in note 186). See also United States v Markwood, 48 F3d 969, 976–77 (6th Cir 1995) (emphasizing that “a “district court’s role in the enforcement of an administrative subpoena is a limited one” consisting of determining whether the agency has met statutory and judicially created standards for issuing and enforcing the subpoena).
Without adversity between the two contending parties to the foreign dispute, district courts cannot exercise their usual broad discretion in evaluating domestic discovery disputes. There are no party needs or interests to weigh, and no disagreements over particular discovery requests to resolve. As noted in Part II, approximately 93 percent of foreign tribunal requests come from civil law countries,190
See Table 2.
See, for example, John H. Langbein, The German Advantage in Civil Procedure, 52 U Chi L Rev 823, 827 (1985) (noting that in Germany, “[d]igging for facts is primarily the work of the judge”).
Nor is a district court entertaining a foreign tribunal request playing its usual screening role under § 1782. The statute requires that the requested discovery be “for use in a proceeding in a foreign or international tribunal.”192
28 USC § 1782.
See Intel, 542 US at 264–65.
Compare In re Clerici, 481 F3d 1324, 1335 (11th Cir 2007) (explaining that the Intel factors for receptivity and noncircumvention supported granting the request “given that the foreign tribunal here is the Panamanian Court and the Panamanian Court itself issued the letter rogatory requesting assistance”), with Order, Request for International Judicial Assistance from the 12th Family Court in Istanbul, Turkey; Matter of Ekmekçi v Ekmekçi, No 1:15-mc-22425, *1 (SD Fla filed July 1, 2015) (“The statutory requirements set forth at 28 U.S.C. § 1782(a) have been met. Furthermore, the additional factors to be considered . . . weigh in favor of granting the request.”), citing Intel, 542 US at 247.
Not only are the bases for a district court’s usual exercise of jurisdiction under the FRCP and § 1782 inapposite, but for the approximately 86 percent of tribunal requests coming from countries for which the Hague Evidence Convention is in force with respect to the United States,195
See Table 2.
The permissible grounds for denying a discovery request under the Hague Evidence Convention include if the request does not comply with Convention requirements (Article 5), if the request is for a matter that is not civil or commercial (Article 1), and if the country to which the request is addressed “considers that its sovereignty or security would be prejudiced thereby” (Article 12). Hague Evidence Convention Arts 1, 5, 12(b), 23 UST at 2557, 2560, 2562.
See In re Premises Located at 840 140th Ave, 634 F3d at 568, 570–72 (holding that the US-Russia Mutual Legal Assistance Treaty governing discovery assistance in criminal matters superseded § 1782’s grant of discretionary authority to district courts); Restatement (Fourth) of Foreign Relations Law of the United States § 309(2) (2013) (“When there is a conflict between a self-executing treaty provision and a federal statute, courts in the United States will apply whichever reflects the latest expression of the will of the U.S. political branches.”).
There were five tribunal requests that were denied in the random sample. All but one of the denials were for technical reasons, such as a technical defect in the application, and without prejudice. The last denial is discussed below in note 199.
See, for example, Transcript of Hearing on Petition for Judicial Review, In re Request for International Judicial Assistance from the National Court of First Instance in Labor Matters No 37 of Buenos Aires, Argentina, No 3:12-cv-00662, *4–8 (D Nev filed Sept 16, 2013), (denying a tribunal request from Argentina in part due to the judge’s belief that the country from which the request originated did not honor American judgments and extradition requests—a ground for denial not permitted under the Convention).
When a district court receives a discovery request directly from a foreign party, it bears some resemblance to discovery within the United States. The request is coming from a party to a foreign proceeding against an adverse party, which parallels the bipolar structure of domestic discovery disputes. Perhaps because of this analogous structure, some courts are confident that their “substantial experience controlling discovery abuse in domestic litigation” prepares them for “similarly root[ing] out sham applications under § 1782.”200
Glock v Glock, Inc, 797 F3d 1002, 1009 (11th Cir 2015).
In re Schlich, 893 F3d 40, 46 (1st Cir 2018), quoting Seattle Times Co v Rhinehart, 467 US 20, 36 (1984).
A Bill to Revise, Codify, and Enact into Law Title 28 of the United States Code, Entitled “Judicial Code and the Judiciary”, HR Rep No 79-2646, 79 Cong, 2d Sess A146 (1946).
Kang v Noro-Moseley Partners, 246 F Appx 662, 663 (11th Cir 2007). See also ProEnergy Services, LLC, 677 F3d at 344; Nascimento v Faria, 600 F Appx 811, 812 (2d Cir 2015).
Yet, foreign discovery requests are distinctive in two key respects. First, there are two courts involved in a foreign discovery request—the US court entertaining the discovery request, and the foreign court presiding over the action. Since the plenary suit is necessarily abroad, it is governed by a different set of procedural rules. When a discovery request comes from a foreign party, it cannot be guaranteed that the foreign court or tribunal will accept US discovery under the FRCP as would another district court governed by the FRCP. Precisely for this reason, Intel set out three discretionary factors aimed at discerning whether the foreign court is receptive to exported discovery. Second, unlike domestic out-of-district discovery requests targeting a nonparty and involving two district courts, there is no clear requirement for informing or involving other parties to the foreign dispute or for consulting with the foreign court on subpoena-related motions. A foreign discovery request “stands separate from the main controversy” in a heightened way.204
In re Premises Located at 840 140th Ave, 634 F3d at 566 (quotation marks omitted).
1. Missing stakeholders and information.
There is an acute lack of clarity as to who should be informed, involved, or consulted when a district court receives a discovery request from a foreign party. Following precedents concerning discovery requests from foreign tribunals, many courts have held that it is proper for § 1782 applications to be made on an ex parte basis even when that application comes from a foreign party.205
See, for example, Gushlak v Gushlak, 486 F Appx 215, 217 (2d Cir 2012) (stating that “it is neither uncommon nor improper for district courts to grant applications made pursuant to § 1782 ex parte” and listing several examples); Order, Elkind v CCBill, LLC, No 2:14-mc-00030, *1 (D Ariz filed May 9, 2014) (granting ex parte request).
See, for example, In re Ex Parte Application of Société d’Etude de Réalisation et d’Exploitation pour le Traitement du Mais, 2013 WL 6164435, *2 n 1 (ED Pa) (explaining that ex parte applications under § 1782 are justified because the parties will be given adequate notice of any discovery taken pursuant to the request and will then have the opportunity to move to quash the discovery); In re Letter of Request from Supreme Court of Hong Kong, 138 FRD 27, 32 n 6 (SDNY 1991) (“[S]uch ex parte applications are typically justified by the fact that the parties will be given adequate notice of any discovery taken pursuant to the request and will then have the opportunity to move to quash the discovery or to participate in it.”); Interbrew Central Europe Holding BV v Molson Coors Brewing Co, 2013 WL 5567504, *1 (D Colo) (finding that “Applicant’s ex parte request is appropriately made and that Respondents may later seek modification of the discovery herein ordered by way of an appropriate motion”).
See Part III.A (discussing that FRCP 45 requires notification to all parties of discovery requests targeting nonparties).
Other courts have not condoned ex parte proceedings. But even when notification is required, courts do not agree on the legal basis for, or the components of, the requirement. Some have applied FRCP 45’s requirement that all parties be notified of discovery requests targeting nonparties.208
See In re Hornbeam Corp, 722 F Appx 7, 10–11 (2d Cir 2018) (applying FRCP 45(a)(4)’s notification requirements but nevertheless affirming the district court’s denial of a motion to vacate or quash and refusal to sanction the applicant due to lack of prejudice).
See, for example, Order by Magistrate Judge Arthur Nakazato, In re Ex Parte Application of Nokia Corp, No 8:13-mc-00010, *1 (CD Cal filed May 15, 2013) (denying a § 1782 request without prejudice for failure to comply with Local Rule 7-19 governing ex parte applications in the Central District of California).
See, for example, In re Merck & Co, Inc, 197 FRD 267, 270–71 (MD NC 2000) (observing that “[n]othing in Section 1782 states that the application is to be made ex parte, much less that the Court must entertain the application ex parte,” and concluding that “nothing in Section 1782 prevents the Court in any given case from advancing the process by requiring the notification to take place at an earlier time in order to reduce disruption and conserve judicial resources”) (emphasis in original).
See, for example, Request to File Under Seal, In re Application of Lúcia de Araujo Bertolla for an Order Pursuant to 28 USC § 1782 to Obtain Discovery for Use in a Foreign Proceeding, No 1:17-mc-00284, *1 (SDNY filed April 25, 2018) (Araujo Bertolla Request to File Under Seal) (explaining that the court requested the applicant brief the issue of why the federal rules’ subpoena notice requirement should not apply).
See, for example, Order to Show Cause, In re the Court Order of the Romford County Court of Great Britian Dated May 21, 2009, No 6-11-mc-00028, *1 (MD Fla filed May 6, 2011) (ordering the applicant to explain in writing why the target has not been served per a prior order and threatening sanctions as well as denial of the request). See also Certain Funds, Accounts and/or Investment Vehicles Managed by Affiliates of Fortress Investment Group LLC v KPMG LLP, No 1:14-cv-01801 (SDNY filed Mar 14, 2014), (issuing a summons for a § 1782 request); Summons in a Civil Case, Blue Traffic Ltd v VT iDirect, Inc, No 1:08-mc-00031 (ED Va filed July 7, 2008) (same). For the text of this requirement, see FRCP 4(c).
See, for example, Order, In re Application of Halliburton SAS, No 1:14-mc-00004, *2 (ED Va filed Feb 4, 2014) (Halliburton Application Order); In re Ex Parte Application of Apple, Inc, Apple Retail Germany GmBh; and Apple Sales International, No 3:12-cv-00179, *1 (SD Cal filed Feb 1, 2012) (Apple Application Order); Order to Show Cause Why this Court Should Not Grant Ecuadorean Plaintiffs’ Ex Parte Application for Expedited Service and Enforcement of Subpoenas to Conduct Discovery for Use in Foreign Proceeding Pursuant to 28 U.S.C. § 1782, In re Application of Daniel Carlos Lusitand Yaiguaje, No 3:11-mc-80087, *2 (ND Cal filed May 9, 2011) (Yaiguaje Application Order).
See, for example, Halliburton Application Order at *2 (cited in note 213) (ordering that applicant provide notice to a number of relevant parties); Apple Application Order at *1 (cited in note 213) (same); Yaiguaje Application Order at *2 (cited in note 213) (same).
See, for example, Order, In re Application Pursuant to 28 USC § 1782 of Financial Guaranty Insurance Co v Lehman Brothers, Inc, No 1:11-mc-00085, *2 (SDNY filed Mar 29, 2011).
The confusion goes deeper: whether a foreign discovery request is a case or controversy is itself a question that has caused widespread discord across district courts, revealing uncertainty about the basic structure of these requests as well as the due process and personal jurisdiction requirements attending them.216
For background on the “case or controversy” requirement and its constitutional roots, see Martin H. Redish and Andrianna D. Kastanek, Settlement Class Actions, the Case-or-Controversy Requirement, and the Nature of the Adjudicatory Process, 73 U Chi L Rev 545, 563–66 (2006).
See Appendix C, Table 6. Compare Notice of New Case Number and Notice of Judge Assignment, In re Application of Hulley Enterprises Ltd, Yukos Universal Ltd, and Veteran Petroleum Ltd for an Order Pursuant to 28 USC § 1782 to Conduct Discovery for Use in a Foreign Proceeding, No 2:17-mc-00088, *1 (CD Cal filed Sept 26, 2017) (case converted from miscellaneous to civil); Order Directing the Clerk of Court to Redesignate this Matter as a Contested Civil Case for Statistical Purposes, In re Application of H.M.B. Limited Pursuant to 28 USC § 1782 to Conduct Discovery for Use in Foreign Proceedings, No 1:17-cv-21459 (SD Fla filed May 1, 2018) (same), with Order, APR Energy Holdings Ltd v Australia and New Zealand Banking Group Ltd, No 1:17-cv-02784, *1 (SDNY filed Apr 24, 2017) (case converted from civil to miscellaneous); Notice Regarding E-filing, In re Application of Akebia Therapeutics, Inc for an Order Granting Leave to Issue Subpoena for the Taking of Discovery Pursuant to 28 USC 1782, No 5:14-cv-04678, *1 (ND Cal filed Oct 21, 2014) (same).
See, for example, US District Court Northern District of Texas, Electronic Case Filing: Opening a Miscellaneous Case 1 (Nov 2016), archived at https://perma.cc/Y9VU-KR2X.
The result of this confusion and the accompanying erratic notification requirements are missing parties and stakeholders that ultimately deprive federal courts of the information they need to conduct rigorous analyses. Because foreign discovery requests are frequently decided without the knowledge and input of the foreign adversary or the foreign court, the range of basic information that judges struggle to ascertain is staggering. They include: whether the foreign proceeding is civil or criminal;219
See In re Biomet Orthopaedics Switzerland GmBh, 742 F Appx 690, 697 (3d Cir 2018) (noting that the lower court erred in concluding that discovery was sought for a criminal appeal when in fact it was sought for a civil trial proceeding).
See id.
See Order, In re Application of Raoul Malak, No 2:14-mc-00089, *4 (D Ariz filed Feb 17, 2015) (Malak Application Order) (“[T]he Court lacks any meaningful information with which to determine whether the such [sic] discovery is relevant to the foreign proceeding.”).
See Memo Endorsement, In re Application of Gorsoan Ltd and Gazprombank OJSC for an Order Pursuant to 28 USC § 1782 to Conduct Discovery for Use in a Foreign Proceeding, No 1:13-mc-00397, *1 (SDNY filed Oct 22, 2014).
See Memorandum and Order Regarding Intervenor’s Motion to Quash and to Vacate, In re: Application of Hanwha Azdel, Inc and Hanwha L&C Corp for Assistance Before a Foreign Tribunal, No 3:13-mc-93004, *2–4 (D Mass filed Oct 29, 2013).
See Marubeni America Corp v LBA Y.K., 335 F Appx 95, 97–98 (2d Cir 2009).
See In re Chevron Corp, 633 F3d 153, 162–63 (3d Cir 2011).
2. Undermining foreign tribunals and litigation.
When the Supreme Court considered § 1782 in Intel, the Court stated that comity is “important as [a] touchstone[ ] for a district court’s exercise of discretion in particular cases.”226
Intel, 542 US at 261.
The fourth discretionary factor and parity, which the Court also identified as “important as [a] touchstone[ ] for a district court’s exercise of discretion in particular cases,” will be discussed in the following section. Id. See also Dodge, 115 Colum L Rev at 2105 (cited in note 52) (noting that § 1782 is motivated by “adjudicative comity,” which the author defines as “deference to foreign courts”).
See Intel, 542 US at 264.
Id.
Id.
Id at 265.
Due to the lack of input from foreign tribunals and foreign opposing parties in § 1782 proceedings, and the open-ended nature of these factors,232
See Certain Funds, Accounts and/or Investment Vehicles v KPMG, LLP, 798 F3d 113, 118 (2d Cir 2015) (commenting that the Intel opinion does not provide guidance on “minimum requirements or tests to be met”).
See Gardner, 69 Stan L Rev at 959–64 (cited in note 86).
The first factor concerning whether the foreign tribunal can obtain the requested evidence without US assistance is often simplified to ask whether the target of the discovery request is a party or nonparty to the foreign proceeding. This analysis is easier to manage judicially, leading many courts to recite standard language that discovery is favored because it is sought from a nonparty.234
See, for example, Order Granting Application in Part for Judicial Assistance Pursuant to 28 U.S.C. § 1782, In re Application of Lúcia De Araujo Bertolla for an Order Pursuant to 28 USC § 1782 to Obtain Discovery for Use in a Foreign Proceeding, No 1:17-mc-00284, *2 (SDNY filed Nov 13, 2017) (“[T]he Discovery Targets are not parties in the proceedings in Brazil and are not expected to become parties thereto, thus, the need for this discovery is more apparent.”); Omnibus Report and Recommendations on Motions to Intervene, Vacate, Quash Subpoenas, and for Protective Order, In re Application of H.M.B. Limited Pursuant to 28 USC 1782 to Conduct Discovery for Use in Foreign Proceedings, No 1:17-cv-21459, *17 (SD Fla filed July 2, 2018) (refusing to “look beyond the subpoenaed party to ascertain the true target of discovery”) (emphasis in original). But see In the Matter of a Petition for Judicial Assistance Pursuant to 28 USC § 1782 by Macquarie Bank Ltd, 2015 WL 3439103, *6 (D Nev) (arguing that the first discretionary factor “militates against allowing § 1782 discovery when the petitioner effectively seeks discovery from a participant in the foreign tribunal even though it is seeking discovery from a related, but technically distinct entity”); Order, In re Application of Parmalat Brasil S.A. Industrial de Alimentos and LAEP Investments, Ltd for an Order Pursuant to 28 USC § 1782 to Conduct Discovery for Use in Foreign Proceedings, No 1:11-mc-00077, *6 (SDNY filed July 26, 2011) (Parmalat Application) (concluding that the first factor is neutral because “whether those same documents are obtainable in Brazil is, at this juncture, unknown”).
See, for example, Bravo Express Corp v Total Petrochemicals & Refining USA, Inc, 613 F Appx 319, 320–21 (5th Cir 2015) (seeking discovery from US targets that had a corporate relationship and joint business operations with the entities that were involved in the underlying disputed acts); Application for an Order Directing ASML US, Inc. to Respond to Requests for Documents Pursuant to 28 U.S.C. § 1782 For Use in Foreign Proceedings, and Supporting Memorandum, In re Application Pursuant to 28 U.S.C. § 1782 of Nikon Corp, No 1:17-mc-00142, *8 (SDNY filed Apr 26, 2017) (seeking discovery from the wholly owned subsidiary of the opposing party in the foreign action).
See, for example, In re Application of Schmitz, 259 F Supp 2d 294, 296 (SDNY 2003) (“Application of section 1782 does not involve an analysis of . . . why a respondent has the documents.”); Ex Parte Application for an Order Pursuant to 28 U.S.C. § 1782 Granting Leave to Obtain Discovery from Quinn Emanuel for Use in Foreign Proceedings, In re Ex Parte Application of Apple, Inc, No 5:12-mc-80124, *1 (ND Cal filed May 25, 2012).
See Kiobel by Samkalden v Cravath, Swaine & Moore LLP, 895 F3d 238, 241 (2d Cir 2018), cert denied, 139 S Ct 852 (2019) (noting that the sought-after documents were sent by Shell to the United States “solely . . . for the purpose of American litigation”).
See id at 241, 246–47.
Focusing on the nonparty status of the discovery target leads to a particularly absurd result when the discovery that is sought is in fact located abroad. While the drafters of § 1782 did not anticipate the statute to be used extraterritorially,239
See Hans Smit, American Assistance to Litigation in Foreign and International Tribunals: Section 1782 of Title 28 of the U.S.C. Revisited, 25 Syracuse J Intl L & Commerce 1, 10–12 (1998) (noting that allowing such discovery is likely to interfere with foreign court processes while making the United States the “clearing house[ ]” for information “all over the world”).
See Sergeeva v Tripleton International Ltd, 834 F3d 1194, 1200 (11th Cir 2016) (holding that § 1782 reaches “responsive documents and information located outside the United States” so long as it is within the “possession, custody, or control of” the discovery target); In re del Valle Ruiz, 939 F3d 520, 524 (2d Cir 2019) (holding that “there is no per se bar to the extraterritorial application of § 1782”). See also FRCP 45(a)(1)(A)(iii). But see Pinchuk v Chemstar Products LLC, 2014 WL 2990416, *4 (D Del) (quashing a discovery request for documents located abroad).
The second and third factors concerning receptivity and whether a discovery request is an attempt to circumvent foreign proof-gathering restrictions are often considered in tandem and have resulted in a number of analytical shortcuts that effectively write these factors out of existence. The most prominent among them is burden shifting, since Intel did not specify burdens. Many district courts have held that the target resisting discovery must provide “authoritative proof” that the foreign court is not receptive.241
There is a multiway split in the courts on the question of who bears the burden of showing receptivity or the lack thereof. Compare Ecuadorian Plaintiffs v Chevron Corp, 619 F3d 373, 378–79 (5th Cir 2010); Chevron, 633 F3d at 162 (holding that relevant evidence is “presumptively discoverable” unless the party opposing discovery shows offense to the foreign jurisdiction); In re MTS Bank, 2017 WL 3155362, *6 (SD Fla) (“[C]ourts look for authoritative proof that a foreign tribunal would reject evidence obtained with the aid of § 1782.”) (quotation marks omitted) (emphasis in original), with Foda v Capital Health, 2010 WL 2925382, *2 (ND Cal) (placing the burden of proof on the applicant); In re Application of Chevron Corp, 762 F Supp 2d 242, 252 (D Mass 2010) (noting that the targets of foreign discovery requests “are often individuals plucked out of their repose who may . . . not necessarily [have] the wherewithal to mount a defense to an application, let alone . . . prove a negative, i.e., a foreign tribunal’s non receptivity to the discovery sought”) (emphasis in original), Department of Caldas v Diageo PLC, 925 F3d 1218, 1223 (11th Cir 2019) (taking a “middle-of-the-road approach” that does not apply a rigid burden-shifting framework); Order, In re Application of Digitechnic, No 2:07-cv-00414, *6–7 (WD Wash filed May 8, 2007) (not placing the burden on either side).
See, for example, In re O’Keeffe, 646 F Appx 263, 266–68 (3d Cir 2016) (affirming district court’s conclusion that Hague Evidence Convention being in effect between United States and Hong Kong was sufficient indication that Hong Kong courts would be receptive to American judicial assistance). See also In re Servicio Pan Americano de Protección, 354 F Supp 2d 269, 274 (SDNY 2004) (“Venezuela has indicated its receptivity to federal judicial assistance by its signature of treaties facilitating such cooperation.”).
See note 84 and accompanying text.
See, for example, Order Granting Ex Parte Application for Order to Obtain Discovery for Use in Foreign Proceedings, In re Ex Parte Application of ANZ Commodity Trading Party Ltd, No 4:17-mc-80070, *6 (ND Cal filed Aug 4, 2017) (relying on cases cited by applicant in which US courts had previously granted foreign discovery requests from Hong Kong to conclude that Hong Kong is receptive).
The overarching result of these simplified tests is that district courts are reflexively granting foreign discovery requests because the comity-based discretionary factors are not gauging whether exported US discovery is assisting or interfering with foreign proceedings. Instead, appellate courts have instructed district courts that it is preferable to modify a request on the basis that it is too burdensome rather than deny or quash a request altogether.245
See, for example, Bravo Express, 613 F Appx at 325 (“[M]odification of a subpoena is preferable to quashing it outright, and a district court abuses its discretion when it does not explain its reasoning, does not allow the applicant an opportunity to cure any defects, and does not attempt to modify the subpoena to cure any overbreadth.”) (quotation marks omitted).
See, for example, Heraeus Kulzer, 633 F3d at 597 (“German judges can disregard evidence that would waste the court’s time.”); In re Ex Parte Application of Nokia Corp, 2013 WL 6073457, *3 (ND Cal) (“[T]he German court can exclude evidence of marginal probative value.”).
3. Undermining universal and American litigation values.
Not only are there inadequate safeguards for protecting against compelling discovery that interferes with foreign litigation, the way in which foreign discovery requests are considered also undermines universal notions of due process and fairness as well as deeply held American litigation values. Federal courts are typically permitted to hear “definite and concrete” controversies affecting “the legal relations of parties having adverse legal interests.”247
Aetna Life Insurance Co v Haworth, 300 US 227, 240–41 (1937).
See Pfander and Birk, 124 Yale L J at 1357 (cited in note 186).
See id at 1358.
See id at 1450 n 490 (noting that “the Fifth Amendment’s Due Process Clause may provide a more effective instrument for moderating non-contentious forms than a strict adherence to an adverse-party rule that would foreclose the exercise of all judicial power over such matters”).
See id at 1446.
When foreign discovery requests proceed ex parte, they raise all the alarms that ex parte proceedings usually do. The presence of a nonparty target does not assuage these concerns, as nonparty targets do not have the same interest in resisting discovery as might the opposing party and often cooperate with the requestor, agreeing to a joint protective order that protects the confidentiality of the discovered materials instead of opposing the request itself.252
See, for example, Order Granting Joint Motion for a Protective Order, In the Matter of Miasto Poznañ v Skarb Panstwa, No 1:15-mc-00179 (D Colo filed Jan 7, 2016). A high degree of cooperation typically occurs when the nonparty target is a bank or social media company that is willing to comply with the request but needs a § 1782 order to justify compliance to the client whose information is being released. See also Neil A.F. Popovic and Shin Hahn, Pursuing and Responding to Discovery Requests Under 28 U.S.C. § 1782 (Lexology, Mar 29, 2019), archived at https://perma.cc/XD6Y-4R5D.
See, for example, Complaint for Declaratory Relief, Comcast Cable Communications, LLC v Hourani, No 1:15-cv-01724, *2–4 (DDC filed Oct 19, 2015).
See Aetna Life, 300 US at 240–41.
Compare In re Kleimar N.V. v Benxi Iron and Steel America, Ltd, 2017 WL 3386115, *4 (ND Ill) (“[T]here is no question that an entity against whom the discovery will be used has standing to challenge an order allowing discovery under § 1782.”), with Order, In re Application of Chevron, No 1:10-mc-00001, *1 (SDNY filed Aug 24, 2010) (noting that the plaintiffs in the foreign proceeding for which discovery was sought, “whose standing in this matter is debatable to say the least,” had moved to strike some of the filings submitted by § 1782 applicant, who happened to be the defendant in the foreign proceeding).
Although a foreign tribunal is not an absent party, compelled discovery in the United States can also alter a foreign tribunal’s ability to manage litigation before it. Notifying and involving the foreign tribunal is justified on this ground. Moreover, it is the type of factual investigation a US judge should undertake when faced with an ex parte § 1782 request. Were the foreign tribunal a different district court in the United States, consultation with the tribunal—and potentially also transfer of subpoena-related motions back to it—would be, respectively, encouraged and permitted under FRCP 45. But because the tribunal is located abroad, courts have, on occasion, precluded its participation.256
See, for example, Memorandum and Order, In re Application of Microsoft Corp, No 1:06-mc-10061, *6 n 4 (D Mass filed Apr 17, 2006) (Microsoft Memorandum and Order) (denying the European Commission’s motion to intervene on the grounds that its views have already been received and represented by Novell, Inc, the nonparty target of the § 1782 request).
Without adversity and the typical due process accorded to parties whose legal interests might be harmed, § 1782 proceedings are often characterized by unfairness and a lack of parity between the parties to the foreign dispute. In Intel, the Supreme Court instructed district courts to consider parity a “touchstone[ ]” for its exercise of discretion, and noted that a district court could condition its grant of a discovery request on the applicant’s reciprocal exchange of information.257
Intel, 542 US at 261–62.
See, for example, In re Application of Consorcio Minero, S.A. v Renco Group, Inc, 2012 WL 1059916, *4 (SDNY) (granting reciprocal discovery in Peru); Minatec Finance S.À.R.L. v SI Group Inc, 2008 WL 3884374, *9 (NDNY) (granting reciprocal discovery located in Luxembourg).
Moreover, district courts typically do not consider parity at all, occasionally leading to inconsistent and unfair results within the United States. In a set of three related foreign discovery requests spanning nearly a decade, two were granted to Heraeus Kulzer, a German company, for use against its competitor Biomet with which it was embroiled in litigation in both Germany and Switzerland.259
See Heraeus Kulzer, 633 F3d at 595–99; Kulzer v Esschem, Inc, 390 F Appx 88, 89–90 (3d Cir 2010).
See In re Biomet Orthopaedics Switzerland GmBh, 742 F Appx at 699 (refusing to accept Heraeus’s argument that Biomet’s discovery request should not be granted due to potential exposure of trade secrets because “Heraeus [had] gained access to wide swaths of Biomet’s potentially proprietary information through its own 1782 discovery requests in the Northern District of Indiana and the Eastern District of Pennsylvania”).
See, for example, Astronics Advanced Electronics Systems Corp v Lufthansa Technik AG, 561 F Appx 605, 606 (9th Cir 2014) (discussing competing § 1782 requests from adverse parties to the same foreign proceeding). But see Republic of Ecuador v Connor, 708 F3d 651, 658 (5th Cir 2013) (relying on judicial estoppel to prevent an applicant from taking advantage of a circuit split).
Aside from undermining adverseness, due process, and parity between the foreign parties, the lack of information about the underlying foreign proceeding also frustrates the usual discovery analyses judges are expected to conduct. In particular, judges often have no reliable way of ascertaining whether the requested discovery is “relevant to any party’s claim or defense.”262
FRCP 26(b)(1). See also, for example, Malak Application Order at *4 (cited in note 221) (“[T]he Court lacks any meaningful information with which to determine whether the such [sic] discovery is relevant to the foreign proceeding.”); Order Re: Application for Discovery Pursuant to 28 U.S.C. § 1782, MetaLab Design Ltd v Zozi International, Inc, No 3:17-mc-80153, *6 & n 1 (ND Cal filed Jan 11, 2018) (concluding that the requested evidence “may be relevant” to the requestor’s counterclaims, but noting in a footnote that the court could not determine whether the applicant’s assertion that the discovery would allow it “to defend the Canadian Action” was “in fact the case”); Alexander v Federal Bureau of Investigation, 194 FRD 316, 325 (DDC 2000) (changing the relevance standard to include that which “bears on, or that [which] reasonably leads to other matters that could bear on, any issue that is or may be in the case”).
FRCP 26(b)(1). The proportionality analysis was originally introduced in 1983. The corresponding committee notes explained that “the rule recognizes that many cases in public policy spheres, such as employment practices, free speech, and other matters, may have importance far beyond the monetary amount involved.” FRCP 26, Notes of the Advisory Committee on Rules—1983 Amendment, Note to Subdivision (b).
See Massen, 83 S Cal L Rev at 883 (cited in note 40) (noting that in the United States, “litigants control most aspects of discovery while the judge’s role is limited to defining the outer boundaries of the proof-gathering process while avoiding active participation”).
Merck & Co, 197 FRD at 270.
See Certain Funds, Accounts and/or Investment Vehicles, 798 F3d at 125.
The export of American discovery needs reform. Foreign discovery requests have been rapidly on the rise over the past decade and a half, and foreign party requests, in particular, have exceeded tribunal requests in most recent years.267
See Part II.
See id.
Beginning with the most straightforward and achievable reforms, I call for more active judicial management of § 1782 requests so that Intel’s discretionary factors can be sincerely applied rather than merely paid lip service. To that end, I suggest that federal courts systematically invite the participation of foreign tribunals and foreign opposing parties. Because these changes are needed to follow the Supreme Court’s directives in Intel, they can be adopted immediately by federal judges—as some already have. But their consistent application across the country will require the addition of a new Federal Rule of Civil Procedure and moderate amendments to § 1782. This is particularly important given that over 60 percent of federal district courts received foreign discovery requests during the study period.269
See Part II.A.
Next, I suggest restructuring foreign discovery requests such that they are no longer treated as stand-alone actions in US courts. Instead, requiring that all discovery requests related to the same foreign proceeding be brought as a single unified US action before the same federal judge will improve administrability, facilitate active judicial management, and reduce internally inconsistent and unfair results.
The Supreme Court held in Intel that comity is a policy concern that district courts should address in their exercise of discretion. Accordingly, three of the four discretionary factors set out in Intel are aimed at avoiding offense to foreign tribunals. Yet, the European Commission opposed Intel’s prescription of case-by-case judicial discretion on the basis that a district court “can only weigh fairly the complex interests of a foreign sovereign in aiding or blocking a Section 1782 discovery request if it is made aware of those interests.”270
European Commission Brief at *17 (cited in note 28).
Id.
Meaningfully implementing Intel’s discretionary factors requires more active judicial management of foreign discovery requests by federal courts and more active participation from foreign tribunals. Federal judges can accomplish this by systematically providing written notice to foreign tribunals when § 1782 requests are received and sua sponte seeking the tribunals input. District courts may specifically ask foreign tribunals to weigh in on the Intel factors, to provide information needed to apply the FRCP’s proportionality analysis, or to share scheduling information so that US discovery can be produced in time for it to be taken into consideration abroad. As noted in Part II, many foreign discovery requests are currently filed while the foreign litigation is pending but reach no resolution because the foreign litigation is resolved before the application is decided.272
See Appendix C, Table 14 (showing a steady number of cases every year that reach no resolution).
Notification and consultation of foreign tribunals is even more critical in those instances where evidence is requested for multiple parallel proceedings occurring around the world. Recall that approximately 28 percent of foreign party requests are for evidence to be used in multiple foreign proceedings, which may include a US proceeding.273
See Part II.
See In re Accent Delight International Ltd, 869 F3d 121, 135 (2d Cir 2017) (holding that § 1782 “does not prevent an applicant who lawfully has obtained discovery under the statute with respect to one foreign proceeding form using the discovery elsewhere unless the district court orders otherwise”).
Some district courts have already begun taking a more active stance toward foreign discovery requests. They have, for instance, provided notice to foreign tribunals,275
See, for example, Order, In re Application Pursuant to 28 USC § 1782 of Financial Guaranty Insurance Co v Lehman Brothers, Inc, No 1:11-mc-00085, *2 (SDNY filed Mar 29, 2011).
See, for example, Letter from Paul A. Crotty, US District Judge, to Judge Enrique Claudio González Meyenberg, In re Operación y Supervisión de Hoteles, S.A. de C.V., No 1:15-mc-00172 (SDNY filed Aug 12, 2015); Letter from Paul A. Crotty, US District Judge, to Judge Enrique Claudio González Meyenberg, In re Operación y Supervisión de Hoteles, S.A. de C.V., No 1:15-mc-00172 (SDNY filed Sept 4, 2015).
See, for example, Araujo Bertolla Request to File Under Seal at *3 (cited in note 211); Matter of the Application of Ching Chung Taoist Association of Hong Kong Ltd, 2016 WL 5339803, *1 (ND Cal) (denying discovery as to one witness but stating that the court may revisit the issue after the Australian court decides pending motion about discovery from that witness); Order, In re Ex Parte Application of Banco Safra for an Order Pursuant to 28 USC Section 1782 to Conduct Discovery for Use in Foreign Proceedings, No 1:16-mc-21971, *3–4 (SD Fla filed Sept 8, 2016) (giving respondents opportunity to obtain Brazilian court decision regarding their asserted privileges and instructing them to submit a status report regarding their prospective request for declaratory relief in Brazil); Parmalat Application at *5–8 (cited in note 234) (staying discovery request pending further action from Brazilian court).
See, for example, Order Directing Mentor Graphics Corporation to File Status Report, In re Application of Mentor Graphics Corp, No 5:16-mc-80037, *1 (ND Cal filed June 15, 2016); Ching Chung Taoist Association, 2016 WL 5339803 at *3 (noting that the applicant provided notice to court regarding status of underlying foreign proceeding).
See, for example, Memorandum and Order on Petition for Discovery for Use in Foreign Proceedings Pursuant to 28 U.S.C. § 1782, In re Application of George W. Schlich, No 1:16-mc-91278, *1–4 (D Mass filed Dec 9, 2016) (examining submissions from both sides to the European Patent Office).
See, for example, Order, In re Application of Jurema Dimas de Melo Pimenta and Dimas de Melo Pimenta Filho Pursuant to 28 USC § 1782 For Judicial Assistance in Obtaining Evidence in This District, No 1:12-mc-24043, *1–2 (SD Fla filed Jan 29, 2013) (ordering movant to seek ruling or guidance from Brazilian court).
Some foreign tribunals have also started taking more active part in § 1782 proceedings either directly or through private parties. The Korean Fair Trade Commission, for example, filed letters to the court in seven foreign discovery requests in the Northern District of California.281
See, for example, Letter from Korea Fair Trade Commission, In re Ex Parte Application of Qualcomm Inc, No 5:16-mc-80002, *1 (ND Cal filed Jan 26, 2016); Letter From Korea Fair Trade Commission, In re Ex Parte Application of Qualcomm Inc, No 5:16-mc-80008, *1 (ND Cal filed Jan 26, 2016); Letter From Korea Fair Trade Commission, In re Ex Parte Application of Qualcomm Inc, No 5:16-mc-80005, *1 (ND Cal filed Jan 26, 2016).
Motion of the Commission of the European Communities to Intervene, In re Application of Microsoft Corporation, No 1:06-mc-10061, *1 (D Mass filed Apr 6, 2006); Memorandum of the Commission of the European Communities in Support of Novell, Inc.’s Motion to Quash, In re Application of Microsoft Corp, No 1:06-mc-10061, *1 (D Mass filed Apr 6, 2006). The motion to intervene was denied on the basis that the European Commission’s views were already represented by the other parties. See Microsoft Memorandum and Order at *6 n 4 (cited in note 256).
See In re Application of Schmitz, 259 F Supp 2d 294, 297 (SDNY 2003) (describing the intervention by the German Federal Ministry of Justice); In re Winkler, 2005 US Dist LEXIS 46937, *1–2 (SDNY) (same).
See Kulzer v Esschem, Inc, 390 F Appx 88, 92 (3d Cir 2010) (noting that although the German court at issue could not itself order the sought-after discovery due to German procedural rules, the court “does not restrict receipt of the evidence sought and in fact has postponed a hearing scheduled for April 15, 2010 to September 30, 2010, specifically for the purpose of permitting [the applicant] extra time to pursue its discovery requests in Indiana and Pennsylvania”).
See El Paso Corp v La Comision Ejecutiva Hidroelectrica del Rio Lempa, 341 F Appx 31, 32 (5th Cir 2009) (“The arbitral tribunal issued an order expressing its views on the § 1782 application, noting that it was not receptive to these discovery efforts.”).
See In re Hallmark Capital Corp, 534 F Supp 2d 951, 957 (D Minn 2007) (“[T]he Israeli arbitrator has stated his ‘receptivity’ to this Court’s assistance.”).
See In re Application of Accent Delight International Ltd, 2016 WL 5818597, *2 (SDNY) (discussing that a magistrate judge in Monaco wrote that it was permissible for two corporations to seek discovery in the United States and submit it in their proceeding in Monaco); In re Application of Schmitz, 259 F Supp 2d at 299 (explaining that a presiding judge of a Frankfurt district court filed a letter stating that “[i]f . . . documents from a US–American proceeding are attached to a written statement in the case file, the Court will take notice of this submission”). In In re Application of Schmitz, the Frankfurt judge later changed his mind after finding out that the German Ministry of Justice had opposed it. See Schmitz, 259 F Supp at 299.
These existing ad hoc attempts at fostering foreign tribunal participation in § 1782 proceedings reveal that the needs of transnational discovery are not easily generalizable, for they are too specific and fine-tuned to be addressed by blanket rules. A German judge may find US discovery assistance helpful in one proceeding but not in another. A broad-stroke solution covering an entire country, or a type of foreign proceeding such as private commercial arbitration, is unlikely to further the goal of facilitating dispute resolution across borders. Instead, case-by-case participation is needed.
They also suggest that processes for notifying and including foreign tribunals need to be systematized. A system of notification and consultation can be implemented immediately through shifts in judicial practice that federal appellate judges can enforce through abuse of discretion review. To ensure their consistent application across the board, such notification and consultation practices need to be codified through the addition of a new Federal Rule of Civil Procedure specifically governing transnational discovery requests.
Moreover, a system of notification and consultation requires accompanying amendments to § 1782. The statute is currently interpreted to permit discovery requests related to suits that are being contemplated and have yet to be filed.288
See Intel, 542 US at 259 (holding that § 1782 “requires only that a dispositive ruling . . . be within reasonable contemplation”).
See Part III.A.
The Supreme Court additionally held in Intel that parity is a policy concern that district courts should address in their exercise of discretion. Yet, most § 1782 requests target nonparties to the foreign proceeding and are considered ex parte, without the participation of the foreign opposing party. As noted in Part II, only 37 percent of party requests in 2015 were contested either by the foreign opposing party or the nonparty target, and uncontested requests were more likely to be granted than contested requests. Whether the low contestation rate was due to lack of notice versus failure to contest could not be determined from docket analysis.
Some courts no longer allow § 1782 requests to be considered ex parte, but notification requirements are currently erratic and need to be systematically applied.290
See Part III.C.1.
Like the requirement to notify and consult the foreign tribunal, the requirement to notify and include the foreign opposing party can be achieved initially through changes in judicial practices. To ensure consistency across the many district courts that now receive § 1782 requests, this requirement should be codified in the new Federal Rule of Civil Procedure governing transnational discovery requests.
In Part II, I noted that docket analysis provides incomplete information about when multiple discovery requests are made in the United States for the same foreign proceeding because each foreign discovery request operates as its own stand-alone action. A single foreign proceeding might generate many discovery requests in different district courts and before different federal judges who are not aware of the other requests. This splintered structure makes foreign discovery requests uniquely difficult to administer, including making it difficult to assess whether discovery requests are abusive, overly burdensome, or proportional to the demands of the case.
Take, for example, the Chevron litigation and arbitration in Ecuador concerning oil contamination in the Amazon. Chevron filed over twenty-three § 1782 requests in district courts across the United States,291
See Roger P. Alford, Ancillary Discovery to Prove Denial of Justice, 53 Va J Intl L 127, 143 (2012).
See id. See also Chevron Corp v Naranjo, 667 F3d 232, 236 (2d Cir 2012).
See Republic of Ecuador v Connor, 708 F3d 651, 657–58 (5th Cir 2013).
I recommend that foreign discovery requests related to the same foreign proceeding be restructured to more closely resemble domestic discovery requests. The unit of analysis should not be a singular discovery request but rather a singular foreign proceeding. Like domestic discovery requests that are initially all directed to the same federal district court that oversees the plenary dispute, foreign discovery requests related to the same foreign plenary dispute should also, at least initially, all be directed to the same federal district court. If some discovery is needed from another district, the out-of-district request can be managed by a compliance court, as it is in the domestic context under FRCP 45.294
See Part III.A.
Restructuring will require § 1782 to be amended. A more achievable but less effective short-term solution would be to require § 1782 applicants to report all other § 1782 discovery requests linked to the same foreign proceeding so that they may be consolidated.
Despite their rapid growth in recent years, foreign discovery requests remain a small fraction of the overall federal docket.295
Toward the end of the study period (2013–2017), there were approximately two hundred foreign discovery requests filed per year, see Appendix C, Table 5, whereas there were 292,076 civil filings overall in federal district courts in 2017. See US Courts, Federal Judicial Caseload Statistics 2017, archived at https://perma.cc/UUJ2-FY57.
See, for example, Pamela K. Bookman, Litigation Isolationism, 67 Stan L Rev 1081, 1089, 1115–16 (2015) (describing these doctrines as “avoidance doctrines” and criticizing them for undermining US interests while driving plaintiffs to sue abroad).
See Maggie Gardner, Retiring Forum Non Conveniens, 92 NYU L Rev 390, 394 (2017) (explaining that certain cases dismissed for forum non conveniens were not viewed by the foreign tribunal as an act of comity but rather as an expression of protectionism).
As private actors become more savvy and transnational cases become more meaningfully connected to multiple fora, national judges can no longer operate in a silo. They need to seek out the participation of foreign parties because their decisions alter the procedural rights of private actors abroad. They need to seek out the participation of foreign tribunals because they share overlapping authority with foreign judges and arbitrators over certain cases. Ultimately, a reconceptualization of US judges as partners in global governance,298
Thanks to Bill Dodge for suggesting this turn of phrase.
Global governance is defined as “the collective management of common problems at the international level.”299
European Union Institute for Security Studies, Global Governance 2025: At a Critical Juncture *17 (2010), archived at https://perma.cc/K8NQ-WRKH.
Political scientists have observed that particular issue areas are now governed by “an array of partially overlapping and nonhierarchical institutions,” which can in turn lead to confusion and conflict. Karen J. Alter and Kal Raustiala, The Rise of International Regime Complexity, 14 Ann Rev L & Soc Sci 329, 333 (2018). See also generally Karen J. Alter and Sophie Meunier, The Politics of International Regime Complexity, 7 Perspectives on Polit 13 (2009).
This Article serves as a case study of a set of institutional challenges that will only grow in the coming years, and an example of the type of institutional solutions that will be needed. It calls for scholarship on judicial information sharing and coordination across borders,301
I explore this subject elsewhere. See generally Yanbai Andrea Wang, Procedural Coordination Across Borders (unpublished manuscript, 2020) (on file with author).
I relied on the Public Access to Court Electronic Records (PACER) system to compile a dataset of incoming foreign discovery requests for use in civil proceedings abroad.302
PACER is a fee-based “electronic public access service that allows users to obtain case and docket information online from federal appellate, district, and bankruptcy courts, and the PACER Case Locator.” See Administrative Office of the United States Courts, Public Access to Court Electronic Records, archived at https://perma.cc/7GAV-95AX.
See, for example, Engstrom, 65 Stan L Rev at 1214–15 (cited in note 109) (discussing incompleteness in Westlaw’s and Lexis’s databases); Hoffman, Izenman, and Lidicker, 85 Wash U L Rev at 686 (cited in note 109) (same). When I inquired about the exact methodology by which Westlaw gathers its contents, a Westlaw reference attorney explained: “We . . . obtain reported decisions from the court, we have employees who are out acquiring non-published cases constantly and we receive request[s] to add cases from customer and sales reps.” Email from Stephanie Zoet, Academic Account Manager, Thomson Reuters (July 28, 2017) (on file with author). In phone conversations with Westlaw and Lexis representatives and reference attorneys, I was repeatedly told that the exact methodologies by which they compile their respective databases are proprietary information that could not be shared. Both services declined to put me in touch directly with members of their data team.
Engstrom, 65 Stan L Rev at 1215 (cited in note 109).
PACER is a mandatory electronic docketing system within federal district courts that provides access to all filed actions nationwide. The process of moving to PACER’s electronic docketing system began in 1988, and was mostly completed by the mid-2000s.305
PACER was initially accessible at terminals in libraries and other designated locations and became available on the Internet in 2001. See Bobbie Johnson, Recap: Cracking Open US Courtrooms (The Guardian, Nov 11, 2009), archived at https://perma.cc/PZ8V-MFGX(noting that PACER was initially accessible at terminals in libraries and other designated locations, and became available on the Internet in 2001); Engstrom, 65 Stan L Rev at 1208 (cited in note 109).
The PACER Case Locator allows searches by case number, title, party name, and date range, but does not allow searches to identify cases for which this information is not known. See Administrative Office of the United States Courts, PACER Case Locator Advanced Case Search, online at https://pcl.uscourts.gov/pcl/pages/search/findCaseAdvanced.jsf(visited May 1, 2019) (Perma archive unavailable).
See Bloomberg Law, Bloomberg Law Docket Coverage, online at https://www.bloomberglaw.com/dockets/coverage/detail(visited May 17, 2020) (Perma archive unavailable) (noting that Bloomberg contains records of proceedings for all federal district courts from 1989 to the present).
Not all documents filed on PACER are text searchable (some are scanned as images), and the same goes for Bloomberg. There does not appear to be any pattern in which documents are text searchable.
To compile as exhaustive as possible a dataset of incoming foreign civil discovery requests, I took four steps. First, I crafted and tested a variety of text search parameters for identifying foreign civil discovery requests. Since all foreign civil discovery requests and some foreign criminal discovery requests are ultimately executed under the authority of § 1782, the task was to create a dataset of discovery requests brought under § 1782 during that time period, and then to exclude the criminal discovery requests. I tested different text searches on Bloomberg Law by cross-checking results for individual calendar years with cases identified by Westlaw as citing § 1782 for that same time period. When Westlaw only contained an appellate case, I looked for the corresponding district court case in the Bloomberg Law search results. I chose to use Westlaw over Lexis for this step because Westlaw is more inclusive.309
See Hoffman, Izenman, and Lidicker, 85 Wash U L Rev at 710 n 138 (cited in note 109) (noting that all opinions in Lexis were present in the Westlaw database, whereas some opinions were in Westlaw but not in Lexis).
“letter rogatory” OR “letters rogatory” OR “judicial assistance” OR “discovery in aid of international” OR “discovery in aid of foreign” OR (28 /5 1782) OR (use /s “foreign proceeding”) OR (use /s “foreign proceedings”) OR (aid /s “foreign proceeding”) OR (aid /s “foreign proceedings”)
Second, on May 31, 2018, I ran the above text search on Bloomberg Law on cases filed in all ninety-four federal district courts between January 1, 2005 and December 31, 2017. As discussed in Part II, these dates were selected to capture how courts have treated foreign civil discovery requests during the years since the Supreme Court’s decision in Intel. This initial search produced over ten thousand results.
Third, since these results included many false positives that were not § 1782 requests, they were manually culled, a process that eliminated approximately two-thirds of the results, leaving over three thousand true positives. All available information was used to determine whether the case was a true § 1782 request, including if it was labelled as such in the title or in the “cause” field of the docket report. I did not include as true positives cases that were unambiguously erroneous uses of § 1782.310
See, for example, Order, Whitehead Clan Foreign Trust v Conway, No 2:14-mc-00072, *1 (D Ariz filed Nov 21, 2014) (denying the request because the court could not discern what the plaintiff was requesting).
Fourth, to ensure that the dataset is close to exhaustive and unbiased, I cross-checked with cases identified by Westlaw as citing § 1782 for different calendar years than had been used to construct the text search. The results confirmed my expectations: I missed less than 1 percent of cases identified by Westlaw, and I could not have captured them without expanding the search terms such that I would have lost a significant degree of specificity in the overall result. There does not appear to be a pattern in the types of § 1782 requests that are missing. They are missing because none of the search terms were mentioned in the docket report or in the text searchable underlying documents. I could not detect any pattern in either the text labels entered into docket reports or whether underlying filed documents were text searchable. I also confirmed that the dataset is close to complete and unbiased by internally checking those cases that were refiled under a different case number or consolidated.311
See Part II.A; Part III.C.1 (discussing refiled cases).
Ossenova Interview (cited in note 53).
The dataset as a whole likely misses a few cases on the margins, but is close to exhaustive and unlikely to be biased. However, a cautionary note on the 2017 cases is in order: while Bloomberg Law representatives insist that the service regularly updates dockets and pulls in new documents as they are filed, that is not always accurate in my experience and in the experience of research assistants working on this project. Sometimes, it is necessary to manually click an “Update Docket” button to fetch the most recent documents. The result is that the text search was likely run on some docket reports for 2017 that were not fully up-to-date and may undercount the number of § 1782 requests in that year. This problem did not seem to affect earlier years, likely because those dockets had, over time, become updated either due to Bloomberg Law clients manually updating those cases or by the system’s automatic update mechanism. Additionally, some of the 2017 cases may not yet have reached completion when the text search was run on May 31, 2018, again leading to the search being run on incomplete docket reports and possibly undercounting cases in 2017.
Appendix B: Data Coding Methodology
TOPOf the over three thousand true positive § 1782 requests in the dataset, approximately one-third (over one thousand requests) were randomly selected for further coding for the following information. This coding was completed with the help of a team of research assistants. We met weekly to discuss difficult coding decisions and I spot-checked the results for accuracy. Some cases were sealed overall or had underlying documents that were sealed or otherwise unavailable. All available information was used to make determinations, or data was recorded as missing.313
Neither I nor OIJA is aware of any pattern in which cases become sealed or have missing documents. Ossenova Interview (cited in note 53).
- Civil or criminal: Some foreign criminal discovery requests were previously executed under § 1782. Criminal discovery requests were coded as such and not examined further.
- District court: We coded for the district court to which civil discovery requests were made.
- Requestor: We coded for who brought the request, whether it was a tribunal, party, or interested person. If the request was brought by a tribunal, we tracked whether the request came directly to the district court, through the Department of Justice’s OIJA, or through a party. In some cases, requests were brought by multiple entities.
- Target: We coded for whether the request targeted a party, a nonparty, or both.
- Foreign tribunal type: We coded for the type of foreign tribunal before which the requested discovery was to be used—whether it was a foreign court, an international court, a regulatory agency, a commercial arbitral tribunal, or an investor-state arbitral tribunal. In some cases, requests indicated that the evidence would be used in multiple tribunals.
- Numerosity of foreign proceeding: We coded for whether the evidence was requested for one foreign proceeding or multiple foreign proceedings.
- Timing of foreign proceeding: We coded for the timing of the foreign proceeding for which the evidence was requested—whether the foreign proceeding was pending, contemplated, or mixed (if the evidence was requested for multiple proceedings).
- Country of foreign proceeding: We coded for the country or countries of the foreign proceeding(s) for which the evidence was requested. I then also categorized the country in four ways to look for patterns: by region, by Hague Evidence Convention status, by legal system type, and by rule-of-law score. The categorizations are explained below.
- Regions—The countries appearing in the dataset were categorized by the following regions:
- Americas—Argentina, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, Ecuador, Guatemala, Honduras, Mexico, Panama, Paraguay, Peru, Uruguay, Venezuela
- Caribbean—Antigua, Bahamas, Barbados, Bermuda, Cayman Islands, Curacao, Dominican Republic, Jamaica, British Virgin Islands, St. Vincent and the Grenadines
- Western Europe—Andorra, Austria, Belgium, Czech Republic, Denmark, European Union, France, Germany, Greece, Guernsey, Isle of Man, Italy, Jersey, Luxembourg, Monaco, Netherlands, Northern Ireland, Norway, Portugal, Spain, Slovenia, Sweden, Switzerland, United Kingdom
- Eastern Europe—Croatia, Estonia, Hungary, Moldova, Poland, Romania, Serbia, Slovakia, Russia
- Middle East—Bahrain, Cyprus, Dubai, Egypt, Iran, Israel, Kuwait, Morocco, Oman, Saudi Arabia, Turkey, United Arab Emirates
- Asia—American Samoa, Australia, China, Hong Kong, India, Japan, Kazakhstan, Laos, Pakistan, Singapore, South Korea, Taiwan
- Africa—Ethiopia, Ghana, Liberia, South Africa
- Hague Evidence Convention status—The countries appearing in the dataset were categorized by whether the Hague Evidence Convention was in force between that country and the United States in the calendar year when the case was filed. This may not be the same as whether the country is a member of the Hague Evidence Convention. For example, although Brazil acceded to the Hague Evidence Convention, the United States has not accepted its accession, so the Convention is not in force between Brazil and the United States. Below is a list of countries for which the Hague Evidence Convention was in force with respect to the United States, including specific calendar years if that statement only holds true for a segment of the study period. If the Convention came into force between a country and the United States midway through a calendar year, I counted it as being in force starting in the following calendar year. Argentina, Australia, Barbados, China, Colombia (since 2013), Croatia (2010), Cyprus, Czech Republic, Denmark, Estonia, France, Germany, Greece, Hong Kong, Hungary (since 2007), India (since 2007), Israel, Italy, South Korea (since 2010), Kuwait (since 2009), Luxembourg, Mexico, Monaco, Morocco (since 2012), Netherlands, Norway, Poland, Portugal, Romania, Serbia (since 2012), Singapore, Slovakia, South Africa, Spain, Sweden, Switzerland, Turkey, United Kingdom, Venezuela.
- Legal system type—The countries appearing in the dataset were categorized by legal system type as follows:
- Common law: Antigua, Australia, Bahamas, Barbados, Bermuda, British Virgin Islands, Canada, Cayman Islands, Hong Kong, Ireland, Isle of Man, Jamaica, St. Vincent and the Grenadines, United Kingdom
- Civil law: Argentina, Austria, Bolivia, Brazil, Chile, Colombia, Croatia, Czech Republic, Denmark, Dominican Republic, Ecuador, Estonia, France, Germany, Greece, Guatemala, Hungary, Italy, Luxembourg, Mexico, Moldova, Monaco, Netherlands, Norway, Panama, Paraguay, Peru, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Spain, Sweden, Switzerland, Taiwan, Turkey, Uruguay, Venezuela
- Mixed/other: American Samoa, Bahrain, China, Cyprus, Egypt, Ethiopia, Ghana, Guernsey, India, Iran, Israel, Japan, Jersey, Kuwait, Liberia, Morocco, Oman, Pakistan, Singapore, South Africa, South Korea, United Arab Emirates
- Rule-of-law score—The countries appearing in the dataset in 2015–2017 were categorized by rule-of-law score quartile. To derive the quartiles, I used the World Justice Project’s Rule of Law Index,314314and only looked at scores from 2015 to 2017 because the scoring instrument varied with each report during earlier years, whereas the scores are more comparable during this three-year period.315
Like other rule-of-law indexes, such as the Worldwide Governance Indicators, Freedom House’s Freedom in the World Index, and the Heritage Foundation’s Index of Economic Freedom, the World Justice Project’s Rule of Law Index has been criticized for conceptual and methodological problems. Without discounting or overlooking those problems, I use the World Justice Project’s Rule of Law Index as an imperfect way to generate a rough picture of the types of legal systems with which federal district courts are interacting in foreign discovery requests, and whether that picture is different for foreign tribunal versus foreign party requests. See note 135.
315The index evaluates eight factors: constraints on government powers, absence of corruption, open government, fundamental rights, order and security, regulatory enforcement, civil justice, and criminal justice. Although each country is given a score as well as sub-scores for each factor, I only relied on the overall composite score. The following is a list of the countries in each quartile, with years if the country was not in that quartile for the full three-year period. In any given year, countries in the fourth quartile have the highest rule-of-law scores, while those in the first quartile have the lowest scores. Some countries in the dataset were not scored by the World Justice Project, and so appear in the “no score” category.Current & Historical Data (World Justice Project), archived at https://perma.cc/S99Y-KY44:
[T]he construction of the indicators and the underlying survey instruments were slightly revised with the publication of each report during those years. For these reasons, we ask all users to use caution in comparing scores over time, though it can be noted that indicator construction and WJP’s survey instruments have remained relatively stable since 2015, so comparisons can be made with more confidence from 2015–2020. A spreadsheet of the current and historical data can be downloaded at the site.- 4th Quartile: Australia, Austria, Barbados (2016), Belgium, Canada, Chile, Costa Rica, Czech Republic, Denmark, Estonia, Finland, France, Germany, Hong Kong, Japan, Netherlands, New Zealand, Northern Ireland (2016, 2017), Norway, Poland, Portugal, South Korea, Singapore, Slovenia (2016, 2017), Spain, St. Kitts and Nevis (2017), Sweden, United Kingdom, United States, Uruguay
- 3rd Quartile: Antigua (2016, 2017), Argentina (2016, 2017), Bahamas (2016, 2017), Barbados (2017), Belarus (2015), Bosnia and Herzegovina, Botswana, Brazil, Bulgaria, Croatia, Dominica (2016, 2017), Georgia, Ghana, Greece, Grenada (2016, 2017), Hungary, Italy, Jamaica, Jordan, Macedonia (2015, 2016), Malaysia, Mongolia, Nepal (2015), Panama (2015), Philippines (2015), Romania, Senegal, Slovenia (2015), South Africa, St. Kitts and Nevis (2016), St. Lucia (2016, 2017), St. Vincent and the Grenadines (2016, 2017), Trinidad and Tobago (2016, 2017), Tunisia (2015, 2017), United Arab Emirates
- 2nd Quartile: Albania, Argentina (2015), Belarus (2016, 2017), Belize, Burkina Faso (2016, 2017), China, Colombia, Cote D’Ivoire (2015, 2017), Dominican Republic (2015), El Salvador, Guyana (2016, 2017), India, Indonesia, Iran (2017), Kazakhstan, Kyrgyzstan, Lebanon (2015), Macedonia (2017), Malawi, Moldova, Morocco, Nepal (2016, 2017), Panama (2016, 2017), Peru, Russia (2015), Philippines (2016), Serbia, Sri Lanka, Suriname (2016, 2017), Tanzania (2015, 2016), Thailand, Tunisia (2016), Ukraine, Vietnam, Zambia
- 1st Quartile: Afghanistan, Bangladesh, Bolivia, Burkina Faso (2015), Cambodia, Cameroon, Cote D’Ivoire (2016), Dominican Republic (2016, 2017), Ecuador, Egypt, Ethiopia, Guatemala, Honduras, Iran (2015, 2016), Kenya, Lebanon (2016, 2017), Liberia, Madagascar, Mexico, Myanmar, Nicaragua, Nigeria, Pakistan, Philippines (2017), Russia (2016, 2017), Sierra Leone, Tanzania (2017), Turkey, Uganda, Uzbekistan, Venezuela, Zimbabwe
- No score: Andorra, American Samoa, British Virgin Islands, Cyprus, European Union, Isle of Man, Israel, Jersey, Kuwait, Monaco, Switzerland, Taiwan
- Regions—The countries appearing in the dataset were categorized by the following regions:
- Substance area of foreign proceeding: We coded for the substantive area in dispute in the foreign proceeding—whether it was antitrust, bankruptcy, contract (generic contract that does not fit into another category), corporate (disputes regarding corporate structure or breach of an officer’s fiduciary duty), environmental, employment, family (disputes regarding divorce, child custody, or inheritance), fraud (generic fraud that does not fit into another category), maritime, intellectual property or trade secret, products liability, securities, tax, tort (generic tort that does not fit into another category), and other (any requests not covered by the above).
- Number of docket lines: We coded for the number of docket lines it took to resolve a request. This is a very rough gauge of case complexity. Where a request was still pending, we did not track this data.
- Number of orders: We coded for the number of orders it took to resolve a request. This is another very rough gauge of case complexity. Where a request was still pending, we did not track this data.
- Outcome: We coded for the outcome of the request—whether it was granted to some extent (including those that were granted in part or subsequently quashed in part), denied altogether, or reached no resolution. Where an initial result was later altered, we looked at the final outcome. A request reached no resolution if it was withdrawn or otherwise terminated before a decision was made. Where a request was still pending, we did not track the outcome.
- Contestation: For 2015 cases only, we coded for whether the request was challenged. A request may be challenged by the target of discovery, whether party or nonparty to the foreign proceeding, or it may be challenged by the nontarget opposing party. It may be challenged at the outset, or after a request is initially granted ex parte. A challenge may take the form of a motion to quash, motion to vacate, motion to stay, motion for reconsideration, or a motion to compel from the requestor that is opposed. I did not count entries of stipulated protective orders or other requests for confidentiality agreements as contestation.
Appendix C: Supplementary Tables and Figures316316The year of a case is determined by the day on which it was filed.
TOPThe year of a case is determined by the day on which it was filed.
|
Year |
2005 |
|
Total number of cases |
290 |
|
Cases sampled317 317
I drew a random sample across the entire study period for detailed coding. |
102 |
|
Year |
2006 |
|
Total number of cases |
210 |
|
Cases sampled317 317
I drew a random sample across the entire study period for detailed coding. |
62 |
|
Year |
2007 |
|
Total number of cases |
275 |
|
Cases sampled317 317
I drew a random sample across the entire study period for detailed coding. |
97 |
|
Year |
2008 |
|
Total number of cases |
267 |
|
Cases sampled317 317
I drew a random sample across the entire study period for detailed coding. |
91 |
|
Year |
2009 |
|
Total number of cases |
218 |
|
Cases sampled317 317
I drew a random sample across the entire study period for detailed coding. |
70 |
|
Year |
2010 |
|
Total number of cases |
197 |
|
Cases sampled317 317
I drew a random sample across the entire study period for detailed coding. |
59 |
|
Year |
2011 |
|
Total number of cases |
212 |
|
Cases sampled317 317
I drew a random sample across the entire study period for detailed coding. |
72 |
|
Year |
2012 |
|
Total number of cases |
177 |
|
Cases sampled317 317
I drew a random sample across the entire study period for detailed coding. |
73 |
|
Year |
2013 |
|
Total number of cases |
233 |
|
Cases sampled317 317
I drew a random sample across the entire study period for detailed coding. |
82 |
|
Year |
2014 |
|
Total number of cases |
293 |
|
Cases sampled317 317
I drew a random sample across the entire study period for detailed coding. |
94 |
|
Year |
2015 |
|
Total number of cases |
237 |
|
Cases sampled317 317
I drew a random sample across the entire study period for detailed coding. |
98 |
|
Year |
2016 |
|
Total number of cases |
312 |
|
Cases sampled317 317
I drew a random sample across the entire study period for detailed coding. |
111 |
|
Year |
2017 |
|
Total number of cases |
239 |
|
Cases sampled317 317
I drew a random sample across the entire study period for detailed coding. |
81 |
|
Year |
Total |
|
Total number of cases |
3160 |
|
Cases sampled317 317
I drew a random sample across the entire study period for detailed coding. |
1092 |
|
Year |
Total number of cases |
Cases sampled317 317
I drew a random sample across the entire study period for detailed coding. |
|---|---|---|
|
2005 |
290 |
102 |
|
2006 |
210 |
62 |
|
2007 |
275 |
97 |
|
2008 |
267 |
91 |
|
2009 |
218 |
70 |
|
2010 |
197 |
59 |
|
2011 |
212 |
72 |
|
2012 |
177 |
73 |
|
2013 |
233 |
82 |
|
2014 |
293 |
94 |
|
2015 |
237 |
98 |
|
2016 |
312 |
111 |
|
2017 |
239 |
81 |
|
Total |
3160 |
1092 |
Since the random sample was drawn without replacement from a finite population of comparable size, I modeled it as a random draw from a hypergeometric random variable and used this distribution to calculate 95 percent confidence intervals.
|
Year |
Number 95% CI |
|
Civil Requests319 319
There is a very small number of requests associated with both underlying civil claims and related criminal proceedings or investigations. These mixed requests comprise 2 percent of the sample and were distributed across years. Because this Article focuses on civil requests, I include these mixed cases in the civil requests group. |
Percentage 95% CI |
|
Criminal Requests |
Number 95% CI |
|
Refiled Requests |
Percentage 95% CI |
|
Number 95% CI | |
|
Percentage 95% CI |
|
Year |
2005 |
|
Civil Requests319 319
There is a very small number of requests associated with both underlying civil claims and related criminal proceedings or investigations. These mixed requests comprise 2 percent of the sample and were distributed across years. Because this Article focuses on civil requests, I include these mixed cases in the civil requests group. |
48.9 34–72 |
|
Criminal Requests |
17% 12%–25% |
|
Refiled Requests |
238 218–256 |
|
82% 75%–88% | |
|
3.3 1–15 | |
|
1.1% 0.34%–5.2% |
|
Year |
2006 |
|
Civil Requests319 319
There is a very small number of requests associated with both underlying civil claims and related criminal proceedings or investigations. These mixed requests comprise 2 percent of the sample and were distributed across years. Because this Article focuses on civil requests, I include these mixed cases in the civil requests group. |
63.4 45–89 |
|
Criminal Requests |
30% 21%–42% |
|
Refiled Requests |
131 108–155 |
|
62% 51%–74% | |
|
15.8 8–35 | |
|
7.5% 3.8%–17% |
|
Year |
2007 |
|
Civil Requests319 319
There is a very small number of requests associated with both underlying civil claims and related criminal proceedings or investigations. These mixed requests comprise 2 percent of the sample and were distributed across years. Because this Article focuses on civil requests, I include these mixed cases in the civil requests group. |
86.1 66–112 |
|
Criminal Requests |
31% 24%–41% |
|
Refiled Requests |
179 156–203 |
|
65% 57%–74% | |
|
9.9 5–25 | |
|
3.6% 1.8%–9.1% |
|
Year |
2008 |
|
Civil Requests319 319
There is a very small number of requests associated with both underlying civil claims and related criminal proceedings or investigations. These mixed requests comprise 2 percent of the sample and were distributed across years. Because this Article focuses on civil requests, I include these mixed cases in the civil requests group. |
108 86–136 |
|
Criminal Requests |
41% 32%–51% |
|
Refiled Requests |
144 120–171 |
|
54% 45%–64% | |
|
14.4 7–32 | |
|
5.4% 2.6%–12% |
|
Year |
2009 |
|
Civil Requests319 319
There is a very small number of requests associated with both underlying civil claims and related criminal proceedings or investigations. These mixed requests comprise 2 percent of the sample and were distributed across years. Because this Article focuses on civil requests, I include these mixed cases in the civil requests group. |
127 105–150 |
|
Criminal Requests |
58% 48%–69% |
|
Refiled Requests |
87.9 68–113 |
|
40% 31%–52% | |
|
3.5 1–17 | |
|
1.6% 0.46%–7.8% |
|
Year |
2010 |
|
Civil Requests319 319
There is a very small number of requests associated with both underlying civil claims and related criminal proceedings or investigations. These mixed requests comprise 2 percent of the sample and were distributed across years. Because this Article focuses on civil requests, I include these mixed cases in the civil requests group. |
135 115–155 |
|
Criminal Requests |
69% 58%–79% |
|
Refiled Requests |
51.1 35–74 |
|
26% 18%–38% | |
|
10.9 5–28 | |
|
5.6% 2.5%–14% |
|
Year |
2011 |
|
Civil Requests319 319
There is a very small number of requests associated with both underlying civil claims and related criminal proceedings or investigations. These mixed requests comprise 2 percent of the sample and were distributed across years. Because this Article focuses on civil requests, I include these mixed cases in the civil requests group. |
171 154–186 |
|
Criminal Requests |
81% 73%–88% |
|
Refiled Requests |
34.8 23–54 |
|
16% 11%–25% | |
|
6.3 3–19 | |
|
3% 1.4%–9% |
|
Year |
2012 |
|
Civil Requests319 319
There is a very small number of requests associated with both underlying civil claims and related criminal proceedings or investigations. These mixed requests comprise 2 percent of the sample and were distributed across years. Because this Article focuses on civil requests, I include these mixed cases in the civil requests group. |
151 139–162 |
|
Criminal Requests |
86% 79%–92% |
|
Refiled Requests |
23.1 15–38 |
|
13% 8.5%–21% | |
|
2.6 1–12 | |
|
1.4% 0.56%–6.8% |
|
Year |
2013 |
|
Civil Requests319 319
There is a very small number of requests associated with both underlying civil claims and related criminal proceedings or investigations. These mixed requests comprise 2 percent of the sample and were distributed across years. Because this Article focuses on civil requests, I include these mixed cases in the civil requests group. |
204 190–216 |
|
Criminal Requests |
88% 82%–93% |
|
Refiled Requests |
17.5 10–33 |
|
7.5% 4.3%–14% | |
|
11.6 9–26 | |
|
5% 2.6%–11% |
|
Year |
2014 |
|
Civil Requests319 319
There is a very small number of requests associated with both underlying civil claims and related criminal proceedings or investigations. These mixed requests comprise 2 percent of the sample and were distributed across years. Because this Article focuses on civil requests, I include these mixed cases in the civil requests group. |
247 228–264 |
|
Criminal Requests |
84% 78%–90% |
|
Refiled Requests |
29.6 18–50 |
|
10% 6.1%–17% | |
|
16.5 9–34 | |
|
5.6% 3.1%–12% |
|
Year |
2015 |
|
Civil Requests319 319
There is a very small number of requests associated with both underlying civil claims and related criminal proceedings or investigations. These mixed requests comprise 2 percent of the sample and were distributed across years. Because this Article focuses on civil requests, I include these mixed cases in the civil requests group. |
219 208–228 |
|
Criminal Requests |
92% 88%–96% |
|
Refiled Requests |
7.7 4–19 |
|
3.3% 1.7%–8% | |
|
10.3 6–22 | |
|
4.3% 2.5%–9.3% |
|
Year |
2016 |
|
Civil Requests319 319
There is a very small number of requests associated with both underlying civil claims and related criminal proceedings or investigations. These mixed requests comprise 2 percent of the sample and were distributed across years. Because this Article focuses on civil requests, I include these mixed cases in the civil requests group. |
240 219–260 |
|
Criminal Requests |
77% 70%–83% |
|
Refiled Requests |
33 22–52 |
|
11% 7.1%–17% | |
|
39 27–59 | |
|
12% 8.7%–19% |
|
Year |
2017 |
|
Civil Requests319 319
There is a very small number of requests associated with both underlying civil claims and related criminal proceedings or investigations. These mixed requests comprise 2 percent of the sample and were distributed across years. Because this Article focuses on civil requests, I include these mixed cases in the civil requests group. |
208 193–222 |
|
Criminal Requests |
87% 81%–93% |
|
Refiled Requests |
3.1 1–14 |
|
1.3% 0.42%–5.9% | |
|
27.6 17–46 | |
|
12% 7.1%–19% |
|
Year |
Total |
|
Civil Requests319 319
There is a very small number of requests associated with both underlying civil claims and related criminal proceedings or investigations. These mixed requests comprise 2 percent of the sample and were distributed across years. Because this Article focuses on civil requests, I include these mixed cases in the civil requests group. |
2070 1993–2147 |
|
Criminal Requests |
65% 63%–68% |
|
Refiled Requests |
919 848–996 |
|
29% 27%–32% | |
|
172 139–214 | |
|
5.4% 4.4%–6.8% |
|
Year |
Civil Requests319 319
There is a very small number of requests associated with both underlying civil claims and related criminal proceedings or investigations. These mixed requests comprise 2 percent of the sample and were distributed across years. Because this Article focuses on civil requests, I include these mixed cases in the civil requests group. |
Criminal Requests |
Refiled Requests |
|||
|
Number 95% CI |
Percentage 95% CI |
Number 95% CI |
Percentage 95% CI |
Number 95% CI |
Percentage 95% CI |
|
|
2005 |
48.9 34–72 |
17% 12%–25% |
238 218–256 |
82% 75%–88% |
3.3 1–15 |
1.1% 0.34%–5.2% |
|
2006 |
63.4 45–89 |
30% 21%–42% |
131 108–155 |
62% 51%–74% |
15.8 8–35 |
7.5% 3.8%–17% |
|
2007 |
86.1 66–112 |
31% 24%–41% |
179 156–203 |
65% 57%–74% |
9.9 5–25 |
3.6% 1.8%–9.1% |
|
2008 |
108 86–136 |
41% 32%–51% |
144 120–171 |
54% 45%–64% |
14.4 7–32 |
5.4% 2.6%–12% |
|
2009 |
127 105–150 |
58% 48%–69% |
87.9 68–113 |
40% 31%–52% |
3.5 1–17 |
1.6% 0.46%–7.8% |
|
2010 |
135 115–155 |
69% 58%–79% |
51.1 35–74 |
26% 18%–38% |
10.9 5–28 |
5.6% 2.5%–14% |
|
2011 |
171 154–186 |
81% 73%–88% |
34.8 23–54 |
16% 11%–25% |
6.3 3–19 |
3% 1.4%–9% |
|
2012 |
151 139–162 |
86% 79%–92% |
23.1 15–38 |
13% 8.5%–21% |
2.6 1–12 |
1.4% 0.56%–6.8% |
|
2013 |
204 190–216 |
88% 82%–93% |
17.5 10–33 |
7.5% 4.3%–14% |
11.6 9–26 |
5% 2.6%–11% |
|
2014 |
247 228–264 |
84% 78%–90% |
29.6 18–50 |
10% 6.1%–17% |
16.5 9–34 |
5.6% 3.1%–12% |
|
2015 |
219 208–228 |
92% 88%–96% |
7.7 4–19 |
3.3% 1.7%–8% |
10.3 6–22 |
4.3% 2.5%–9.3% |
|
2016 |
240 219–260 |
77% 70%–83% |
33 22–52 |
11% 7.1%–17% |
39 27–59 |
12% 8.7%–19% |
|
2017 |
208 193–222 |
87% 81%–93% |
3.1 1–14 |
1.3% 0.42%–5.9% |
27.6 17–46 |
12% 7.1%–19% |
|
Total |
2070 1993–2147 |
65% 63%–68% |
919 848–996 |
29% 27%–32% |
172 139–214 |
5.4% 4.4%–6.8% |
Since the random sample was drawn without replacement from a finite population of comparable size, I modeled it as a random draw from a hypergeometric random variable and used this distribution to calculate 95 percent confidence intervals.
|
Court |
Court |
|
Number 95% CI |
Number 95% CI |
|
Percentage 95% CI |
Percentage 95% CI |
|
Court |
New York Southern |
|
Number 95% CI |
272 218–342 |
|
Percentage 95% CI |
23% 18%–28% |
|
Court |
Florida Southern |
|
Number 95% CI |
124 91–173 |
|
Percentage 95% CI |
10% 7.6%–14% |
|
Court |
California Northern |
|
Number 95% CI |
94.1 67–137 |
|
Percentage 95% CI |
7.8% 5.6%–11% |
|
Court |
California Central |
|
Number 95% CI |
84 58–124 |
|
Percentage 95% CI |
7% 4.8%–10% |
|
Court |
Florida Middle |
|
Number 95% CI |
47.1 30–78 |
|
Percentage 95% CI |
3.9% 2.5%–6.5% |
|
Court |
Number 95% CI |
Percentage 95% CI |
|
New York Southern |
272 218–342 |
23% 18%–28% |
|
Florida Southern |
124 91–173 |
10% 7.6%–14% |
|
California Northern |
94.1 67–137 |
7.8% 5.6%–11% |
|
California Central |
84 58–124 |
7% 4.8%–10% |
|
Florida Middle |
47.1 30–78 |
3.9% 2.5%–6.5% |
Where a request came from both a tribunal and another entity, I counted it as a tribunal request. Where the request came from both a party and an interested person, I counted it as a party request. I applied these rules because the Supreme Court instructed judges to gauge foreign tribunal receptivity, which judges can do as long as the foreign tribunal is one of the requestors. See Intel, 542 US at 264–65.
|
Requestor |
Requestor |
|
Number 95% CI |
Number 95% CI |
|
Percentage 95% CI |
Percentage 95% CI |
|
Requestor |
Tribunal |
|
Number 95% CI |
912 817–1016 |
|
Percentage 95% CI |
44% 39%–49% |
|
Requestor |
Direct |
|
Number 95% CI |
22.4 13–44 |
|
Percentage 95% CI |
1.1% 0.63%–2.1% |
|
Requestor |
Via DOJ |
|
Number 95% CI |
832 741–933 |
|
Percentage 95% CI |
40% 36%–45% |
|
Requestor |
Via Party |
|
Number 95% CI |
57.6 39–88 |
|
Percentage 95% CI |
2.8% 1.9%–4.3% |
|
Requestor |
Party |
|
Number 95% CI |
1142 1038–1255 |
|
Percentage 95% CI |
55% 50%–61% |
|
Requestor |
Interested Person |
|
Number 95% CI |
16 8–35 |
|
Percentage 95% CI |
0.77% 0.39%–1.7% |
|
Requestor |
Number 95% CI |
Percentage 95% CI |
|
Tribunal |
912 817–1016 |
44% 39%–49% |
|
Direct |
22.4 13–44 |
1.1% 0.63%–2.1% |
|
Via DOJ |
832 741–933 |
40% 36%–45% |
|
Via Party |
57.6 39–88 |
2.8% 1.9%–4.3% |
|
Party |
1142 1038–1255 |
55% 50%–61% |
|
Interested Person |
16 8–35 |
0.77% 0.39%–1.7% |
To calculate the 95 percent confidence intervals, I first used the hypergeometric distribution to estimate a 95 percent confidence interval for the number of (for example) tribunal requests in the overall population. I then used the hypergeometric distribution a second time to estimate how many requests of this particular sort were made by tribunals. I took a conservative approach and used the lower bound for the number of tribunal requests to calculate the lower bound for the number of requests made by tribunals, etc. This method errs on the side of wider-than-necessary confidence intervals.
|
Target |
Target |
|
Requests from Foreign Tribunals |
Requests from Foreign Tribunals |
|
Requests from Foreign Parties |
Requests from Foreign Parties |
|
Target |
Number 95% CI |
|
Requests from Foreign Tribunals |
Percentage 95% CI |
|
Requests from Foreign Parties |
Number 95% CI |
|
Percentage 95% CI |
|
Target |
Party |
|
Requests from Foreign Tribunals |
132 97–183 |
|
Requests from Foreign Parties |
15% 11%–20% |
|
101 72–134 | |
|
8.4% 6%–12% |
|
Target |
Nonparty |
|
Requests from Foreign Tribunals |
774 684–874 |
|
Requests from Foreign Parties |
85% 75%–96% |
|
1059 959–1166 | |
|
88% 80%–97% |
|
Target |
Both |
|
Requests from Foreign Tribunals |
3.3 1–17 |
|
Requests from Foreign Parties |
0.36% 0.11%–1.9% |
|
40.5 25–70 | |
|
3.4% 2.1%–5.8% |
|
Target |
Requests from Foreign Tribunals |
Requests from Foreign Parties |
||
|
Number 95% CI |
Percentage 95% CI |
Number 95% CI |
Percentage 95% CI |
|
|
Party |
132 97–183 |
15% 11%–20% |
101 72–134 |
8.4% 6%–12% |
|
Nonparty |
774 684–874 |
85% 75%–96% |
1059 959–1166 |
88% 80%–97% |
|
Both |
3.3 1–17 |
0.36% 0.11%–1.9% |
40.5 25–70 |
3.4% 2.1%–5.8% |
Where a request came from more than one tribunal type, it was counted toward both categories, which is why the percentages add up to more than 100 percent. I double counted because each tribunal type is independently significant.
|
Foreign |
Foreign |
|
Requests from Foreign Tribunals |
Requests from Foreign Tribunals |
|
Requests from Foreign Parties |
Requests from Foreign Parties |
|
Foreign |
Number 95% CI |
|
Requests from Foreign Tribunals |
Percentage 95% CI |
|
Requests from Foreign Parties |
Number 95% CI |
|
Percentage 95% CI |
|
Foreign |
Foreign Court |
|
Requests from Foreign Tribunals |
897 816–982 |
|
Requests from Foreign Parties |
99% 90%–100% |
|
1078 979–1184 | |
|
90% 82%–97% |
|
Foreign |
Commercial Arbitration |
|
Requests from Foreign Tribunals |
3.2 1–17 |
|
Requests from Foreign Parties |
0.35% 0.11%–1.9% |
|
119 87–167 | |
|
9.9% 7.2%–14% |
|
Foreign |
Regulatory Agency |
|
Requests from Foreign Tribunals |
9.6 4–27 |
|
Requests from Foreign Parties |
1.1% 0.44%–3% |
|
47.6 30–79 | |
|
4% 2.5%–6.6% |
|
Foreign |
Investor-state |
|
Requests from Foreign Tribunals |
0 0–11 |
|
Requests from Foreign Parties |
0% 0%–1.2% |
|
30.6 18–57 | |
|
2.5% 1.5%–4.7% |
|
Foreign |
International Court |
|
Requests from Foreign Tribunals |
0 0–11 |
|
Requests from Foreign Parties |
0% 0%–1.2% |
|
3.4 1–18 | |
|
0.28% 0.083%–1.5% |
|
Foreign |
Requests from Foreign Tribunals |
Requests from Foreign Parties |
||
|
Number 95% CI |
Percentage 95% CI |
Number 95% CI |
Percentage 95% CI |
|
|
Foreign Court |
897 816–982 |
99% 90%–100% |
1078 979–1184 |
90% 82%–97% |
|
Commercial Arbitration |
3.2 1–17 |
0.35% 0.11%–1.9% |
119 87–167 |
9.9% 7.2%–14% |
|
Regulatory Agency |
9.6 4–27 |
1.1% 0.44%–3% |
47.6 30–79 |
4% 2.5%–6.6% |
|
Investor-state |
0 0–11 |
0% 0%–1.2% |
30.6 18–57 |
2.5% 1.5%–4.7% |
|
International Court |
0 0–11 |
0% 0%–1.2% |
3.4 1–18 |
0.28% 0.083%–1.5% |
To calculate the 95 percent confidence intervals, I first used the hypergeometric distribution to estimate a 95 percent confidence interval for the number of (for example) tribunal requests in the overall population. I then used the hypergeometric distribution a second time to estimate how many requests of this particular sort were made by tribunals. I took a conservative approach and used the lower bound for the number of tribunal requests to calculate the lower bound for the number of requests made by tribunals, etc. This method errs on the side of wider-than-necessary confidence intervals.
|
Nature of Foreign |
Nature of Foreign |
|
Requests from Foreign Tribunals |
Requests from Foreign Tribunals |
|
Requests from Foreign Parties |
Requests from Foreign Parties |
|
Nature of Foreign |
Number 95% CI |
|
Requests from Foreign Tribunals |
Percentage 95% CI |
|
Requests from Foreign Parties |
Number 95% CI |
|
Percentage 95% CI |
|
Nature of Foreign |
Timing of Foreign Proceeding |
|
Nature of Foreign |
Pending |
|
Requests from Foreign Tribunals |
907 830–987 |
|
Requests from Foreign Parties |
100% 91%–100% |
|
1009 909–1117 | |
|
84% 76%–93% |
|
Nature of Foreign |
Contemplated |
|
Requests from Foreign Tribunals |
0 0–11 |
|
Requests from Foreign Parties |
0% 0%–1.2% |
|
121 89–169 | |
|
10% 7.4%–14% |
|
Nature of Foreign |
Mixed |
|
Requests from Foreign Tribunals |
3.2 1–17 |
|
Requests from Foreign Parties |
0.35% 0.11%–1.9% |
|
70.6 48–108 | |
|
5.9% 4%–9% |
|
Nature of Foreign |
Number of Foreign Proceedings for Which Was Discovery Requested |
|
Nature of Foreign |
One |
|
Requests from Foreign Tribunals |
907 830–987 |
|
Requests from Foreign Parties |
100% 91%–100% |
|
864 766–973 | |
|
72% 64%–81% |
|
Nature of Foreign |
Multiple |
|
Requests from Foreign Tribunals |
3.2 1–17 |
|
Requests from Foreign Parties |
0.35% 0.11%–1.9% |
|
336 275–413 | |
|
28% 23%–34% |
|
Nature of Foreign |
Requests from Foreign Tribunals |
Requests from Foreign Parties |
||
|
Number 95% CI |
Percentage 95% CI |
Number 95% CI |
Percentage 95% CI |
|
|
Timing of Foreign Proceeding |
||||
|
Pending |
907 830–987 |
100% 91%–100% |
1009 909–1117 |
84% 76%–93% |
|
Contemplated |
0 0–11 |
0% 0%–1.2% |
121 89–169 |
10% 7.4%–14% |
|
Mixed |
3.2 1–17 |
0.35% 0.11%–1.9% |
70.6 48–108 |
5.9% 4%–9% |
|
Number of Foreign Proceedings for Which Was Discovery Requested |
||||
|
One |
907 830–987 |
100% 91%–100% |
864 766–973 |
72% 64%–81% |
|
Multiple |
3.2 1–17 |
0.35% 0.11%–1.9% |
336 275–413 |
28% 23%–34% |
Where the dispute in the foreign proceeding touched on multiple substance areas, I counted them toward all applicable categories.
|
Requests from Foreign Tribunals |
Requests from Foreign Tribunals |
|
Requests from Foreign Parties |
Requests from Foreign Parties |
|
Requests from Foreign Tribunals |
Area |
|
Requests from Foreign Parties |
Number 95% CI |
|
Percentage 95% CI | |
|
Area | |
|
Number 95% CI | |
|
Percentage 95% CI |
|
Requests from Foreign Tribunals |
Family |
|
Requests from Foreign Parties |
478 397–574 |
|
52% 44%–63% | |
|
Contract | |
|
327 266–404 | |
|
27% 22%–34% |
|
Requests from Foreign Tribunals |
Contract |
|
Requests from Foreign Parties |
140 101–197 |
|
15% 11%–22% | |
|
Patent/IP | |
|
230 181–296 | |
|
19% 15%–25% |
|
Requests from Foreign Tribunals |
Employment |
|
Requests from Foreign Parties |
106 74–156 |
|
12% 8.1%–17% | |
|
Corporate | |
|
148 111–201 | |
|
12% 9.2%–17% |
|
Requests from Foreign Tribunals |
Requests from Foreign Parties |
||||
|
Area |
Number 95% CI |
Percentage 95% CI |
Area |
Number 95% CI |
Percentage 95% CI |
|
Family |
478 397–574 |
52% 44%–63% |
Contract |
327 266–404 |
27% 22%–34% |
|
Contract |
140 101–197 |
15% 11%–22% |
Patent/IP |
230 181–296 |
19% 15%–25% |
|
Employment |
106 74–156 |
12% 8.1%–17% |
Corporate |
148 111–201 |
12% 9.2%–17% |
I calculated these 2.5 percent and 97.5 percent quantiles for the median using bootstrap resampling (ten thousand bootstrap samples per interval).
|
Year |
Year |
|
Requests from Foreign Tribunals |
Requests from Foreign Tribunals |
|
Requests from Foreign Parties |
Requests from Foreign Parties |
|
Year |
Median Docket Lines 95% CI |
|
Requests from Foreign Tribunals |
Median Orders 95% CI |
|
Requests from Foreign Parties |
Median Docket Lines 95% CI |
|
Median Orders 95% CI |
|
Year |
2005 |
|
Requests from Foreign Tribunals |
5 3–32 |
|
Requests from Foreign Parties |
1 1–9 |
|
6 2–40 | |
|
1 1–10 |
|
Year |
2006 |
|
Requests from Foreign Tribunals |
3 3–18 |
|
Requests from Foreign Parties |
2 1–4 |
|
11 4–40.5 | |
|
3 1–8 |
|
Year |
2007 |
|
Requests from Foreign Tribunals |
3 3–3 |
|
Requests from Foreign Parties |
1 1–1 |
|
4 3–33 | |
|
1 1–7 |
|
Year |
2008 |
|
Requests from Foreign Tribunals |
4 2.5–5.5 |
|
Requests from Foreign Parties |
1 1–2 |
|
20 9.5–39.5 | |
|
4 2.5–8.5 |
|
Year |
2009 |
|
Requests from Foreign Tribunals |
4 3–5 |
|
Requests from Foreign Parties |
1 1–1.5 |
|
17.5 7–22 | |
|
4 2–7 |
|
Year |
2010 |
|
Requests from Foreign Tribunals |
3.5 2.5–5 |
|
Requests from Foreign Parties |
1 1–2 |
|
21 9–53 | |
|
4.5 2.5–12 |
|
Year |
2011 |
|
Requests from Foreign Tribunals |
3 2–3 |
|
Requests from Foreign Parties |
1 1–1 |
|
9 6–19 | |
|
2 2–4 |
|
Year |
2012 |
|
Requests from Foreign Tribunals |
3 3–4 |
|
Requests from Foreign Parties |
1 1–1.5 |
|
11 8–21 | |
|
4 2–5 |
|
Year |
2013 |
|
Requests from Foreign Tribunals |
3 3–4.5 |
|
Requests from Foreign Parties |
1 1–1 |
|
11 8–19 | |
|
3 2–3 |
|
Year |
2014 |
|
Requests from Foreign Tribunals |
3 3–4 |
|
Requests from Foreign Parties |
1 1–1 |
|
11 7–18 | |
|
4 2–5 |
|
Year |
2015 |
|
Requests from Foreign Tribunals |
4 3–4 |
|
Requests from Foreign Parties |
1 1–1 |
|
9 6–15 | |
|
2 2–4 |
|
Year |
2016 |
|
Requests from Foreign Tribunals |
3 3–4 |
|
Requests from Foreign Parties |
1 1–1 |
|
13 8–21 | |
|
4 3–5 |
|
Year |
2017 |
|
Requests from Foreign Tribunals |
4 3–4 |
|
Requests from Foreign Parties |
1 1–2 |
|
11 7–20 | |
|
3 2–4 |
|
Year |
Overall |
|
Requests from Foreign Tribunals |
3 3–4 |
|
Requests from Foreign Parties |
1 1–1 |
|
11 9.5–13 | |
|
3 3–4 |
|
Year |
Requests from Foreign Tribunals |
Requests from Foreign Parties |
||
|
Median Docket Lines 95% CI |
Median Orders 95% CI |
Median Docket Lines 95% CI |
Median Orders 95% CI |
|
|
2005 |
5 3–32 |
1 1–9 |
6 2–40 |
1 1–10 |
|
2006 |
3 3–18 |
2 1–4 |
11 4–40.5 |
3 1–8 |
|
2007 |
3 3–3 |
1 1–1 |
4 3–33 |
1 1–7 |
|
2008 |
4 2.5–5.5 |
1 1–2 |
20 9.5–39.5 |
4 2.5–8.5 |
|
2009 |
4 3–5 |
1 1–1.5 |
17.5 7–22 |
4 2–7 |
|
2010 |
3.5 2.5–5 |
1 1–2 |
21 9–53 |
4.5 2.5–12 |
|
2011 |
3 2–3 |
1 1–1 |
9 6–19 |
2 2–4 |
|
2012 |
3 3–4 |
1 1–1.5 |
11 8–21 |
4 2–5 |
|
2013 |
3 3–4.5 |
1 1–1 |
11 8–19 |
3 2–3 |
|
2014 |
3 3–4 |
1 1–1 |
11 7–18 |
4 2–5 |
|
2015 |
4 3–4 |
1 1–1 |
9 6–15 |
2 2–4 |
|
2016 |
3 3–4 |
1 1–1 |
13 8–21 |
4 3–5 |
|
2017 |
4 3–4 |
1 1–2 |
11 7–20 |
3 2–4 |
|
Overall |
3 3–4 |
1 1–1 |
11 9.5–13 |
3 3–4 |
This table represents the outcome of foreign civil discovery requests in the randomly drawn sample.
|
Year |
Year |
|
Requests from Foreign Tribunals |
Requests from Foreign Tribunals |
|
Requests from Foreign Parties |
Requests from Foreign Parties |
|
Year |
Granted No. (%) |
|
Requests from Foreign Tribunals |
Denied No. (%) |
|
Requests from Foreign Parties |
No Res. No. (%) |
|
Granted No. (%) | |
|
Denied No. (%) | |
|
No Res. No. (%) |
|
Year |
2005 |
|
Requests from Foreign Tribunals |
9 (100%) |
|
Requests from Foreign Parties |
0 (0%) |
|
0 (0%) | |
|
5 (100%) | |
|
0 (0%) | |
|
0 (0%) |
|
Year |
2006 |
|
Requests from Foreign Tribunals |
4 (80%) |
|
Requests from Foreign Parties |
1 (20%) |
|
0 (0%) | |
|
8 (80%) | |
|
2 (20%) | |
|
0 (0%) |
|
Year |
2007 |
|
Requests from Foreign Tribunals |
18 (95%) |
|
Requests from Foreign Parties |
0 (0%) |
|
1 (5%) | |
|
6 (86%) | |
|
0 (0%) | |
|
1 (14%) |
|
Year |
2008 |
|
Requests from Foreign Tribunals |
11 (92%) |
|
Requests from Foreign Parties |
0 (0%) |
|
1 (8%) | |
|
10 (56%) | |
|
3 (17%) | |
|
5 (28%) |
|
Year |
2009 |
|
Requests from Foreign Tribunals |
19 (86%) |
|
Requests from Foreign Parties |
1 (5%) |
|
2 (9%) | |
|
13 (93%) | |
|
1 (7%) | |
|
0 (0%) |
|
Year |
2010 |
|
Requests from Foreign Tribunals |
11 (92%) |
|
Requests from Foreign Parties |
0 (0%) |
|
1 (8%) | |
|
16 (64%) | |
|
4 (16%) | |
|
4 (20%) |
|
Year |
2011 |
|
Requests from Foreign Tribunals |
14 (82%) |
|
Requests from Foreign Parties |
1 (6%) |
|
2 (12%) | |
|
26 (72%) | |
|
5 (14%) | |
|
5 (14%) |
|
Year |
2012 |
|
Requests from Foreign Tribunals |
20 (91%) |
|
Requests from Foreign Parties |
1 (5%) |
|
1 (5%) | |
|
25 (74%) | |
|
3 (9%) | |
|
6 (18%) |
|
Year |
2013 |
|
Requests from Foreign Tribunals |
25 (96%) |
|
Requests from Foreign Parties |
0 (0%) |
|
1 (4%) | |
|
30 (73%) | |
|
4 (10%) | |
|
7 (17%) |
|
Year |
2014 |
|
Requests from Foreign Tribunals |
33 (97%) |
|
Requests from Foreign Parties |
0 (0%) |
|
1 (3%) | |
|
28 (72%) | |
|
6 (15%) | |
|
5 (13%) |
|
Year |
2015 |
|
Requests from Foreign Tribunals |
35 (90%) |
|
Requests from Foreign Parties |
0 (0%) |
|
4 (10%) | |
|
37 (80%) | |
|
2 (4%) | |
|
7 (15%) |
|
Year |
2016 |
|
Requests from Foreign Tribunals |
38 (93%) |
|
Requests from Foreign Parties |
1 (2%) |
|
2 (5%) | |
|
26 (67%) | |
|
9 (23%) | |
|
4 (10%) |
|
Year |
2017 |
|
Requests from Foreign Tribunals |
25 (100%) |
|
Requests from Foreign Parties |
0 (0%) |
|
0 (0%) | |
|
34 (83%) | |
|
2 (5%) | |
|
5 (12%) |
|
Year |
Overall |
|
Requests from Foreign Tribunals |
262 (93%) |
|
Requests from Foreign Parties |
5 (2%) |
|
16 (6%) | |
|
264 (75%) | |
|
41 (12%) | |
|
49 (14%) |
|
Year |
Requests from Foreign Tribunals |
Requests from Foreign Parties |
||||
|
Granted No. (%) |
Denied No. (%) |
No Res. No. (%) |
Granted No. (%) |
Denied No. (%) |
No Res. No. (%) |
|
|
2005 |
9 (100%) |
0 (0%) |
0 (0%) |
5 (100%) |
0 (0%) |
0 (0%) |
|
2006 |
4 (80%) |
1 (20%) |
0 (0%) |
8 (80%) |
2 (20%) |
0 (0%) |
|
2007 |
18 (95%) |
0 (0%) |
1 (5%) |
6 (86%) |
0 (0%) |
1 (14%) |
|
2008 |
11 (92%) |
0 (0%) |
1 (8%) |
10 (56%) |
3 (17%) |
5 (28%) |
|
2009 |
19 (86%) |
1 (5%) |
2 (9%) |
13 (93%) |
1 (7%) |
0 (0%) |
|
2010 |
11 (92%) |
0 (0%) |
1 (8%) |
16 (64%) |
4 (16%) |
4 (20%) |
|
2011 |
14 (82%) |
1 (6%) |
2 (12%) |
26 (72%) |
5 (14%) |
5 (14%) |
|
2012 |
20 (91%) |
1 (5%) |
1 (5%) |
25 (74%) |
3 (9%) |
6 (18%) |
|
2013 |
25 (96%) |
0 (0%) |
1 (4%) |
30 (73%) |
4 (10%) |
7 (17%) |
|
2014 |
33 (97%) |
0 (0%) |
1 (3%) |
28 (72%) |
6 (15%) |
5 (13%) |
|
2015 |
35 (90%) |
0 (0%) |
4 (10%) |
37 (80%) |
2 (4%) |
7 (15%) |
|
2016 |
38 (93%) |
1 (2%) |
2 (5%) |
26 (67%) |
9 (23%) |
4 (10%) |
|
2017 |
25 (100%) |
0 (0%) |
0 (0%) |
34 (83%) |
2 (5%) |
5 (12%) |
|
Overall |
262 (93%) |
5 (2%) |
16 (6%) |
264 (75%) |
41 (12%) |
49 (14%) |
This table shows grant rates in the sampled foreign civil discovery requests, calculated as the number of granted requests divided by the number of granted requests plus the number of denied requests. To calculate the 95 percent confidence intervals for tribunal and party requests, I first used the hypergeometric distribution to estimate a 95 percent confidence interval for the number of (for example) tribunal requests in the overall population. I then used the hypergeometric distribution a second time to estimate how many requests of this particular sort were made by tribunals. I took a conservative approach and used the lower bound for the number of tribunal requests to calculate the lower bound for the number of requests made by tribunals, etc. This method errs on the side of wider-than-necessary confidence intervals.
|
Year |
Year |
|
Grant Rate |
Grant Rate |
|
95% CI |
95% CI |
|
Year |
2005 |
|
Grant Rate |
92.9% |
|
95% CI |
69.6%—97.8% |
|
Year |
2006 |
|
Grant Rate |
81.3% |
|
95% CI |
57.1%—95.2% |
|
Year |
2007 |
|
Grant Rate |
100% |
|
95% CI |
87.5%—100% |
|
Year |
2008 |
|
Grant Rate |
87% |
|
95% CI |
68.7%—96.4% |
|
Year |
2009 |
|
Grant Rate |
93.9% |
|
95% CI |
81.9%—98.3% |
|
Year |
2010 |
|
Grant Rate |
87.5% |
|
95% CI |
73.5%—95.7% |
|
Year |
2011 |
|
Grant Rate |
87% |
|
95% CI |
75.7%—93.9% |
|
Year |
2012 |
|
Grant Rate |
91.8% |
|
95% CI |
82.9%—96.9% |
|
Year |
2013 |
|
Grant Rate |
93.5% |
|
95% CI |
86.2%—97.8% |
|
Year |
2014 |
|
Grant Rate |
91.2% |
|
95% CI |
83.2%—96% |
|
Year |
2015 |
|
Grant Rate |
97.3% |
|
95% CI |
92.1%—99% |
|
Year |
2016 |
|
Grant Rate |
86.5% |
|
95% CI |
78.4%—92.3% |
|
Year |
2017 |
|
Grant Rate |
96.8% |
|
95% CI |
90.1%—99% |
|
Year |
Tribunal Requests 2005–2017 |
|
Grant Rate |
98.1% |
|
95% CI |
96.1%—99.3% |
|
Year |
Party Requests 2005–2017 |
|
Grant Rate |
86.6% |
|
95% CI |
82.9%—89.6% |
|
Year |
All Requests 2005–2017 |
|
Grant Rate |
91.9% |
|
95% CI |
89.7%—93.6% |
|
Year |
Grant Rate |
95% CI |
|
2005 |
92.9% |
69.6%—97.8% |
|
2006 |
81.3% |
57.1%—95.2% |
|
2007 |
100% |
87.5%—100% |
|
2008 |
87% |
68.7%—96.4% |
|
2009 |
93.9% |
81.9%—98.3% |
|
2010 |
87.5% |
73.5%—95.7% |
|
2011 |
87% |
75.7%—93.9% |
|
2012 |
91.8% |
82.9%—96.9% |
|
2013 |
93.5% |
86.2%—97.8% |
|
2014 |
91.2% |
83.2%—96% |
|
2015 |
97.3% |
92.1%—99% |
|
2016 |
86.5% |
78.4%—92.3% |
|
2017 |
96.8% |
90.1%—99% |
|
Tribunal Requests 2005–2017 |
98.1% |
96.1%—99.3% |
|
Party Requests 2005–2017 |
86.6% |
82.9%—89.6% |
|
All Requests 2005–2017 |
91.9% |
89.7%—93.6% |
Figure 4: Shannon’s Entropy, Calculated on Mixture of Countries for Civil Requests329
Shannon’s Entropy has been used in varied contexts to measure the diversity of populations. It captures both “richness” (the number of different categories within a population) and “evenness” (the equiprobability of randomly drawing any particular category). The more categories (here, countries) there are in a population, and the more evenly the population is divided across those categories, the higher Shannon’s Entropy.
- 1In re Ex Parte Application of Qualcomm Inc, 162 F Supp 3d 1029, 1032 (ND Cal 2016).
- 2Transcript of Miscellaneous Hearing, Request for International Judicial Assistance from the National Court of First Instance in Labor Matters No 37 of Buenos Aires, Argentina, No 3:12-cv-00662, *3 (D Nev filed Apr 13, 2013).
- 3By foreign civil proceedings, I mean the full range of foreign civil dispute resolution proceedings for which discovery is now being requested in US federal courts, including those before foreign and international courts, foreign regulatory agencies, as well as commercial and investor-state arbitral tribunals.
- 4See Part II.
- 5Id. By foreign parties, I mean any parties to foreign civil proceedings.
- 6See, for example, Memorandum of Law in Support of the Republic of Ecuador and Dr. Diego García Carrión’s Application for an Order Under 28 U.S.C. § 1782(a) to Issue a Subpoena to John A. Connor for the Taking of a Deposition and the Production of Documents for Use in a Foreign Proceeding, In re Republic of Ecuador, No 4:11-mc-00516, *2 (SD Tex filed Nov 28, 2011).
- 7See, for example, Order Granting in Part and Denying in Part Motion to Compel, Kwong v Battery Tai-Shing Corp, No C 08-80142, *1–2 (ND Cal filed Feb 5, 2009).
- 8See, for example, Memorandum of Law in Support of Application for Order, Request for International Judicial Assistance from the 24th Civil Court of Santiago, Chile in Juan Carols Said Kattan v Antonio Miguel Orlandini Said, No 1:17-mc-22657, *1 (SD Fla filed July 17, 2017).
- 9See, for example, Order, In re Request for International Judicial Assistance from The First Instance Court, Calarasi, Romania; Matter of Ionela Camelia Buzduga v Constantin Viorel Buzduga, No 4:16-mc-01439, *3–4 (SD Tex filed July 4, 2016).
- 10See, for example, Ex Parte Application, Without a Letter Rogatory Pursuant to Title 28 U.S.C § 1782 for Discovery Ordered by Islamic Republic of Iran Kish Island, Department 102, Declaration of Counsel, Declaration of Defendant & Proposed Order, Borhani v Ahmadi, No 8:16-mc-00021, *1–2 (CD Cal filed Sept 19, 2016).
- 11See, for example, Ex Parte Order, In re Letter of Request for International Judicial Assistance from the Seoul Central District Court, In the Matter of Subway International B.V. v Kyung Hee Hwang, No 1:13-mc-00059, *1 (SDNY filed Feb 22, 2013).
- 12Scholars writing on the subject have focused almost exclusively on high-profile decisions and circuit splits. See notes 38–43 and accompanying text. There is one limited systematic study of published decisions granting discovery for use in connection with foreign commercial arbitration, but it only examines a small number of unpublished decisions. See Kevin E. Davis, Helen Hershkoff, and Nathan Yaffe, Private Preference, Public Process: U.S. Discovery in Aid of Foreign and International Arbitration *12–14 & nn 75–77 (NYU School of Law Public Law & Legal Theory Working Paper No 15-51, Oct 30, 2015) (identifying twenty-two published opinions of this type).
- 13See, for example, Duane Loft and Joshua Libling, Discovery in Aid of International Proceedings: Recent Developments in Section 1782 (Boies Schiller Flexner, Oct 20, 2015), archived at https://perma.cc/QU8U-M9BL;H. Christopher Boehning, Damiën F. Berkhout, and Peter Hering, The Consorcio Decision and the Need to Account for Discovery Outside the Arbitration Procedure (International Bar Association Legal Practice Division, Feb 2013), archived at https://perma.cc/2W24-EXE3;Claudia T. Salomon, David McLean, Samuel B.C. de Villiers, and Eric M. Broad, US Court of Appeals Revises Opinion: Section 1782’s Use in Arbitration Ambiguous (Latham & Watkins, Feb 3, 2014), archived at https://perma.cc/B5LL-FAL4.
- 14Robert W. Gaffey and Bridget A. Crawford, Developments in U.S. Law Regarding a More Liberal Approach to Discovery Requests Made by Foreign Litigants Under 28 U.S.C. § 1782 (Jones Day, Apr 2009), archived at https://perma.cc/WJL9-Y2CF.
- 15Lyons Flood, Discovery In Aid of Foreign Proceedings, archived at https://perma.cc/767Z-BFCT.
- 16Christopher J. Houpt and Mark G. Hanchet, Section 1782 Discovery: A Back Door for Foreign Litigants (Mayer Brown, Mar 2012), archived at https://perma.cc/AL66-P94S.
- 17Harout J. Samra, US Courts Affirm Expansive Discovery Under 28 U.S.C. § 1782 (DLA Piper, Sept 29, 2015), archived at https://perma.cc/9C6B-PBWF.
- 18As explained below, “export” here occurs on a case-by-case basis, and with the participation of foreign courts or foreign private actors.
- 19See Robert A. Kagan, Adversarial Legalism: The American Way of Law 3 (Harvard 2001) (“Compared to other economically advanced democracies, American civic life is more deeply pervaded by legal conflict and by controversy about legal processes.”). See also generally Amalia D. Kessler, Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800–1877 (Yale 2017) (recounting the nineteenth-century origins of the idea of American legal exceptionalism); Richard L. Marcus, Putting American Procedural Exceptionalism into a Globalized Context, 53 Am J Comp L 709 (2005).
- 20Heraeus Kulzer, GmbH v Biomet, Inc, 633 F3d 591, 594 (7th Cir 2011).
- 21See Part III.A.
- 22See Mirjan R. Damaska, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process 71–96 (Yale 1986) (describing two orientations of government: the “activist” state, which pursues its vision of the good life through policy implementation and tends toward legal institutions that are hierarchical judicial bureaucracies; and the “reactive” state, which provides a framework for its citizens to pursue their own goals and tends toward legal institutions that are more like that of the United States). See also Kagan, Adversarial Legalism at 3 (cited in note 19) (describing legal process in the United States as “adversarial legalism,” meaning “policymaking, policy implementation, and dispute resolution by means of lawyer-dominated litigation”); Diego A. Zambrano, Discovery as Regulation, 119 Mich L Rev *25–27, 32–34 (forthcoming 2020), archived at https://perma.cc/W8DS-7B7D(arguing that American discovery serves regulatory goals by relying on private litigants to enforce important statutes).
- 23See, for example, James H. Carter, Existing Rules and Procedures, 13 Intl Law 5, 5 (1979) (noting that the “virtually boundless sweep of the pre-trial procedures presently permitted by many American courts is so completely alien to the procedure in most other jurisdictions that an attitude of suspicion and hostility is created”).
- 24See Memorandum of Law in Support of Bracha Foundation’s Application for an Order Granting Discovery Pursuant to 28 U.S.C. § 1782, In re Application of Bracha Foundation Request for Discovery Pursuant to 28 USC § 1782, No 2:15-mc-00748, *1–2 & n 1 (ND Ala filed May 1, 2015) (Bracha Foundation Discovery Application Memo).
- 25Act of Oct 3, 1964, Pub L No 88-619, 78 Stat 995 (1964), codified at 28 USC § 1782.
- 26See Bracha Foundation Discovery Application Memo at *1–2 n 1 (cited in note 24) (explaining that the private actor commenced a related action in the British Virgin Islands and filed similar discovery applications in the United States District Courts for the Southern District of New York, the Southern District of Florida, and the Northern District of Ohio).
- 27See In re Application of Bracha Foundation Request for Discovery Pursuant to 28 USC § 1782, 2015 WL 6123204, *1 (ND Ala) (explaining that “the use of ex parte § 1782 applications is widespread and that granting them is not improper based on their ex parte nature”).
- 28Brief of Amicus Curiae the Commission of the European Communities Supporting Reversal, Intel Corp v Advanced Micro Devices, Inc, No 02‑572, *1–6 (US filed Dec 23, 2003) (available on Westlaw at 2003 WL 23138389) (European Commission Brief).
- 29European Commission, 37.990 Intel *12–19 (2009), archived at https://perma.cc/9MWQ-XTE8.
- 30AMD’s Application for Order Directing Intel to Produce Documents Pursuant to 28 U.S.C. § 1782 for Use in European Commission, Case No. Comp/C3-37.990 – AMD/Intel, Advanced Micro Devices, Inc v Intel Corp, No 01-7033, *1–3 (ND Cal filed Oct 1, 2001) (available on Westlaw at 2001 WL 35995385).
- 31Transcript of Oral Argument, Intel Corp v Advanced Micro Devices, Inc, No 02-572, *18, 21–22 (US filed Apr 20, 2004) (available on Westlaw at 2004 WL 954709).
- 32Id at *21.
- 33Hans Smit, International Litigation Under the United States Code, 65 Colum L Rev 1015, 1018 (1965). Hans Smit, professor at Columbia Law School, served as the reporter to the Commission on International Rules of Judicial Procedure that drafted the current version of § 1782. See id at 1015.
- 34Judicial Procedures in Litigation with International Aspects, S Rep No 88-1580, 88th Cong, 2d Sess § 9 at 7 (1964), reprinted in 1964 USCCAN 3782, 3788.
- 35See Intel Corp v Advanced Micro Devices, Inc, 542 US 241, 261 (2004) (noting that comity and parity are “important [ ] touchstones for a district court’s exercise of discretion in particular cases”).
- 36These factors include whether the foreign court needs and is receptive to US discovery, and whether the request “conceals an attempt to circumvent foreign proof-gathering restrictions.” Id at 264–65.
- 37See Advanced Micro Devices, Inc v Intel Corp, 2004 WL 2282320, *1 (ND Cal).
- 38Molly Warner Lien, The Cooperative and Integrative Models of International Judicial Comity: Two Illustrations Using Transnational Discovery and Breard Scenarios, 50 Cath U L Rev 591, 624 (2001).
- 39Richard L. Marcus, Retooling American Discovery for the Twenty-First Century: Toward a New World Order?, 7 Tulane J Intl & Comp L 153, 193 (1999).
- 40See Brian Eric Bomstein and Julie M. Levitt, Comment, Much Ado About 1782: A Look at Recent Problems with Discovery in the United States for Use in Foreign Litigation Under 28 U.S.C. § 1782, 20 U Miami Int-Am L Rev 429, 431–32 (1989) (explaining that the “nearly unbridled discretion” exercised by district courts under 28 USC § 1782 in deciding whether to aid foreign fact-finding “is the root of the problem[ ]”); Marat A. Massen, Discovery for Foreign Proceedings After Intel v. Advanced Micro Devices: A Critical Analysis of 28 U.S.C. § 1782 Jurisprudence, 83 S Cal L Rev 875, 877 (2010) (noting that most academic criticism of 28 USC § 1782 and the Supreme Court’s interpretation of that statute has focused on granting “judges too much discretion for evaluating” foreign discovery requests).
- 41Proposals include a default rule that requests be denied when they seek discovery for certain types of foreign proceedings, most notably commercial arbitrations, and that requests be granted only when the sought-after discovery would be discoverable in the foreign proceeding in which it is to be used. Courts and academics are split on whether § 1782 permits the export of discovery to commercial arbitral tribunals, and the latter proposal was rejected as a bright-line rule by the Supreme Court. Compare In re: Application to Obtain Discovery for Use in Foreign Proceedings, 939 F3d 710, 723 (6th Cir 2019) (holding that private commercial arbitral tribunals are covered by § 1782); Servotronics, Inc v Boeing Co, 954 F3d 209, 214–16 (4th Cir 2020) (same), with Republic of Kazakhstan v Biedermann International, 168 F3d 880, 881–83 (5th Cir 1999) (holding that private commercial arbitral tribunals are not covered by § 1782); National Broadcasting Company, Inc v Bear Stearns & Co, 165 F3d 184, 191 (2d Cir 1999) (same). See also, for example, New York City Bar Association Committee on International Commercial Disputes, 28 U.S.C. § 1782 as a Means of Obtaining Discovery in Aid of International Commercial Arbitration—Applicability and Best Practices 19–25 (2008), archived at https://perma.cc/FUP4-K2JD(describing the circuit split).
- 42See David J. Gerber, Obscured Visions: Policy, Power, and Discretion in Transnational Discovery, 23 Vand J Transnatl L 993, 1007 (1991) (noting that the excessive discretion exercised by judges in responding to foreign discovery requests inappropriately “shifts the available use of United States power from the executive and legislative branches to the judiciary”).
- 43See Stephen B. Burbank, The Reluctant Partner: Making Procedural Law for International Civil Litigation, 57 L & Contemp Probs 103, 135–39 (1994) (criticizing the United States’ historical preference for a unilateral approach that is “hard to justify, even in purely practical terms, in a world that is increasingly interdependent and in which our economic strength is waning”).
- 44The United States has ratified the Hague Evidence Convention. See Hague Conference on Private International Law, HCCH Members, archived at https://perma.cc/QC9R-7J5Q.
- 45See Burbank, 57 L & Contemp Probs at 132 (cited in note 43) (noting that the Hague Evidence Convention “has been a disappointment to many countries that ratified it and a source of controversy and friction”).
- 46See James A.R. Nafziger, Another Look at the Hague Evidence Convention After Aerospatiale, 38 Tex Intl L J 103, 116 (2003) (noting the “need for uniform procedures or at least procedural standards” given the Hague Evidence Convention’s failure to bridge international differences in discovery procedures).
- 47See Marcus, 7 Tulane J Intl & Comp L at 199 (cited in note 39) (arguing that despite US reforms to constrain discovery in recent decades, “a new world order that fits the American reality and also commands the respect of the rest of the industrialized world is probably a thing of the remote future so far as discovery is concerned”).
- 48See Intel, 542 US at 262–65.
- 49See Gary B. Born and Peter B. Rutledge, International Civil Litigation in United States Courts 1024 (Wolters Kluwer 5th ed 2011).
- 50See Act of Mar 2, 1855, ch 140, § 2, 10 Stat 630 (empowering federal courts to subpoena witnesses under letters rogatory).
- 51See 28 USC § 1781(a)(1):
The Department of State has power, directly, or through suitable channels . . . to receive a letter rogatory issued, or request made, by a foreign or international tribunal, to transmit it to the tribunal, officer, or agency in the United States to whom it is addressed, and to receive and return it after execution.
- 52See 22 CFR § 92.54 (2019) (noting that letters rogatory requests “rest entirely upon the comity of courts toward each other, and customarily embody a promise of reciprocity”); William S. Dodge, International Comity in American Law, 115 Colum L Rev 2071, 2078 (2015) (defining international comity).
- 53Telephone Interview with Katerina Ossenova, Office of International Judicial Assistance, Department of Justice (Feb 13, 2019) (Ossenova Interview).
- 54See 22 CFR § 22.1 (2013) (listing $2,275 as the fee for processing a letter rogatory); Donald Earl Childress III, Michael D. Ramsey, and Christopher A. Whytock, Transnational Law and Practice 941 (Wolters Kluwer 2015) (explaining that processing is “frequently [ ] delayed by poor diplomatic relations, bureaucratic inertia, and conflicts with public policy”).
- 55See Andreas F. Lowenfeld, International Litigation and Arbitration 1017 (Thomson West 3d ed 2006).
- 56Ossenova Interview (cited in note 53).
- 57Department of State, Bureau of Consular Affairs, Preparation of Letters Rogatory, archived at https://perma.cc/JCE4-Y6V3.
- 58See Proposed Commission and Advisory Committee on International Rules of Judicial Procedure, S 1890, 85th Cong, 1st Sess, in 103 Cong Rec S 5726 (Apr 16, 1957) (noting that cases with “international ramifications” included “cases in which judicial documents must be served abroad, records or witnesses examined within the territory of a foreign state, or in which proof must be offered of the law prevailing in a foreign jurisdiction”).
- 59Commission and Advisory Committee on International Rules of Judicial Procedure, S Rep No 85-2392, 85th Cong, 2d Sess 2 (1958), reprinted in 1958 USCCAN 5201, 5201–02. See also Burbank, 57 L & Contemp Probs at 110–11 (cited in note 43).
- 60Hickman v Taylor, 329 US 495, 501 (1947).
- 61In some countries like Switzerland, it is a criminal infringement of state sovereignty for a private party to take evidence. S Rep No 85-2392 at 2 (cited in note 58) (“In some jurisdictions, notably Switzerland, there is [a] considerable question whether such a procedure might constitute a penal offense on the assumption that it would be regarded as an illegal usurpation of judicial functions.”).
- 62S 1890, 103 Cong Rec at S 5726 (cited in note 58).
- 63See id.
- 64See S Rep No 85-2392 at 2 (cited in note 59); Childress, Ramsey, and Whytock, Transnational Law and Practice at 940 (cited in note 54); Born and Rutledge, International Civil Litigation at 1025 (cited in note 49).
- 65See Act of June 25, 1948 §§ 1783–84, 62 Stat 869, 949–50, codified at 28 USC §§ 1783–84.
- 66See Burbank, 57 L & Contemp Probs at 112–13 (cited in note 43) (describing amendments to Rule 28(b) in 1963).
- 67FRCP 34, 45.
- 68The 1948 version authorized district courts to depose “any witness residing within the United States [for] use[ ] in any civil action pending in any court in a foreign country with which the United States is at peace.” Act of June 25, 1948, § 1782, 62 Stat at 949.
- 69Act of Oct 3, 1964 § 9, 78 Stat at 997.
- 7028 USC § 1782(a).
- 71Act of Feb 10, 1996, Pub L No 104-106, 110 Stat 486, 486.
- 72S Rep No 88-1580 at 2, 13 (cited in note 34).
- 73Id at 2, 7.
- 74Id at 13.
- 75See, for example, Burbank, 57 L & Contemp Probs at 136 (cited in note 43) (lamenting that § 1782 “reflect[s] the naive view that if the United States were generous, other countries would follow its lead”); Lien, 50 Cath U L Rev at 631 (cited in note 38) (noting that “the invitation [to follow the US example in liberal export] has been declined”).
- 76Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, 23 UST 2555, 2555–56, TIAS No 7444 (1970) (Hague Evidence Convention).
- 77Hague Evidence Convention Arts 1–2, 23 UST at 2557–58.
- 78Ossenova Interview (cited in note 53).
- 79Except that there are typically no fees associated with a request coming from a Hague Evidence Convention state party. Id.
- 80Id.
- 81See Burbank, 57 L & Contemp Probs at 132–33 (cited in note 43).
- 82There are sixty-three contracting states overall. The Convention has entered into force between the United States and all but three of the other contracting states. See Hague Conference on Private International Law, Hague Evidence Convention – Acceptances of Accessions (Apr 21, 2020), archived at https://perma.cc/QHB8-SPXE.
- 83See, for example, Lowenfeld, International Litigation and Arbitration at 1052 (cited in note 55) (noting that the “conflict over the Hague Evidence Convention appears as a kind of replay of the overall conflict about American-style litigation, and in particular about American-style discovery”).
- 84See Hague Evidence Convention Art 23, 23 UST at 2568 (“A Contracting State may at the time of signature, ratification or accession, declare that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.”). The Practical Handbook on the Operation of the Evidence Convention explains that Article 23 does not apply to all requests for production of documents from common law countries during the pretrial discovery phase, but only to those that are not “sufficiently substantiated so as to avoid ‘fishing expeditions.’” See Hague Convention on Private International Law, Practical Handbook on the Operation of the Evidence Convention (3d ed 2016).
- 85Société Nationale Industrielle Aérospatiale v United States District Court for the Southern District of Iowa, 482 US 522, 542 (1987).
- 86Aérospatiale left judges to conduct an open-ended, “particularized analysis” to determine whether first resort to the Hague Evidence Convention is required. Id at 543–44. See also Maggie Gardner, Parochial Procedure, 69 Stan L Rev 941, 946–47 (2017) (finding that this particularized analysis has resulted in federal judges almost never requiring parties to use the Hague Evidence Convention to obtain foreign discovery from other parties).
- 87See Restatement (Third) of Foreign Relations Law of the United States § 442, Reporters’ Note 1 (1987) (“No aspect of the extension of the American legal system beyond the territorial frontier of the United States has given rise to so much friction as the requests for documents in investigation and litigation in the United States.”).
- 88See Hans Smit, Recent Developments in International Litigation, 35 S Tex L Rev 215, 227 (1994) (“While the ruling that the [Hague Evidence] Convention is nonexclusive is to be welcomed, and a different ruling would have been calamitous, it would nevertheless be preferable to denounce the Convention.”). See also Walter B. Stahr, Discovery Under 28 U.S.C. § 1782 for Foreign and International Proceedings, 30 Va J Intl L 597, 599 (1990) (indicating that “litigation regarding discovery in the United States for use abroad has turned on the proper interpretation and application of section 1782, not on the interpretation of the Hague Evidence Convention”).
- 89See 28 USC § 1782.
- 90See, for example, Kiobel by Samkalden v Cravath, Swaine & Moore LLP, 895 F3d 238, 240–41 (2d Cir 2018), cert denied, 139 S Ct 852 (2019); Grupo Mexico SAB de CV v SAS Asset Recovery, Ltd, 821 F3d 573, 573–75 (5th Cir 2016); Heraeus Kulzer, GmbH v Biomet, Inc, 633 F3d 591, 593–94 (7th Cir 2011); Suzlon Energy Ltd v Microsoft Corp, 671 F3d 726, 727–28 (9th Cir 2011).
- 91Born and Rutledge, International Civil Litigation at 1066 (cited in note 49) (asking whether it is “wise for § 1782 to provide judicial assistance at the request of foreign litigants”).
- 92S Rep No 88-1580 at 7 (cited in note 34).
- 93See In re Application of Asta Medica, S.A., 981 F2d 1, 7 (1st Cir 1992); In re Request for Assistance from Ministry of Legal Affairs of Trinidad and Tobago, 848 F2d 1151, 1156 (11th Cir 1988). But see Advanced Micro Devices, Inc v Intel Corp, 292 F3d 664, 668–69 (9th Cir 2002) (rejecting a foreign discoverability requirement); In re Bayer AG, 146 F3d 188, 193–96 (3d Cir 1998) (same); Euromepa S.A. v R. Esmerian, Inc, 51 F3d 1095, 1099–1100 (2d Cir 1995) (same).
- 94542 US 241 (2004).
- 95Id at 250–54.
- 96See European Commission Brief at *4, 15–16 (cited in note 28).
- 97Id at *2.
- 98See Brief of the Chamber of Commerce of the United States as Amicus Curiae In Support of Petitioner, Intel Corp v Advanced Micro Devices, Inc, No 02-572, *1–3 (US filed Nov 15, 2002) (available on Westlaw at 2003 WL 23112944); Brief of Product Liability Advisory Council, Inc as Amicus Curiae In Support of Petitioner, Intel Corp v Advanced Micro Devices, Inc, No 02-572, *2–3 (US filed Dec 31, 2003) (available on Westlaw at 2003 WL 23112943). See also Brief Amicus Curiae of the National Association of Manufacturers in Support of Petitioner, Intel Corp v Advanced Micro Devices, Inc, No 02-572, *8–11 (US filed Nov 15, 2002) (available on Westlaw at 2002 WL 32157392).
- 99See Brief for the United States as Amicus Curiae Supporting Affirmance, Intel Corp v Advanced Micro Devices, Inc, No 02-572, *1–2, 11–13 (US filed Jan 30, 2004) (available on Westlaw at 2004 WL 214306).
- 100See Intel, 542 US at 261–62.
- 101Id at 264–65.
- 102See id at 262.
- 103See Advanced Micro Devices, Inc v Intel Corp, 2004 WL 2282320, *2–3 (ND Cal).
- 104See Servotronics, Inc v Rolls-Royce PLC, No 19-1847, slip op at *15 (7th Cir Sept 22, 2020); In re Guo, 965 F3d 96, 104–06 (2d Cir 2020); El Paso Corp v La Comision Ejecutiva Hidroelectrica Del Rio Lempa, 341 F Appx 31, 33–34 (5th Cir 2009); In re Application to Obtain Discovery for Use in Foreign Proceedings, 939 F3d 710, 717–730 (6th Cir 2019); Servotronics, Inc v Boeing Co, 954 F3d 209, 210 (4th Cir 2020).
- 105See Sergeeva v Tripleton International Ltd, 834 F3d 1194, 1200 (11th Cir 2016) (holding that § 1782 reaches “responsive documents and information located outside the United States” so long as it is within the “possession, custody, or control of” the discovery target); In re del Valle Ruiz, 939 F3d 520, 524 (2d Cir 2019) (holding that “there is no per se bar to the extraterritorial application of § 1782”). But see Pinchuk v Chemstar Products LLC, 2014 WL 2990416, *4 (D Del) (quashing a discovery request for documents located abroad).
- 106This development has gained traction since the Second Circuit held in 2017 that § 1782 “does not prevent an applicant who lawfully has obtained discovery under the statute with respect to one foreign proceeding form using the discovery elsewhere unless the district court orders otherwise.” In re Accent Delight International Ltd, 869 F3d 121, 135 (2d Cir 2017).
- 107See Part III.C.
- 108Globalization Spurs Use of USC 1782 for U.S. Discovery in Foreign Disputes (Bloomberg Law, Feb 17, 2011), archived at https://perma.cc/L56T-2TL7.See also Geoffrey Kertesz, Section 1782: American Dream . . . or Nightmare?, 22 Trusts & Trustees 293, 297 (2016) (“If the reported cases are any indication, use of the statute is on the rise.”).
- 109Other scholars have noted the sampling bias stemming from empirical efforts that rely on Westlaw or Lexis searches. These problems are particularly worrisome for studying low-profile, routine matters such as § 1782 discovery orders, which tend to be unpublished. See, for example, David Freeman Engstrom, The Twiqbal Puzzle and Empirical Study of Civil Procedure, 65 Stan L Rev 1203, 1214–15 (2013) (discussing incompleteness in Westlaw’s and Lexis’s databases); David A. Hoffman, Alan J. Izenman, and Jeffrey R. Lidicker, Docketology, District Courts, and Doctrine, 85 Wash U L Rev 681, 686 (2007) (same).
- 110While different indices for globalization differ on this point, the KOF Globalisation Index, which measures globalization along economic, social, and political dimensions, shows a moderate increase in globalization for the United States during the years 2005 through 2016 (the latest year for which data is available). See KOF Swiss Economic Institute, KOF Globalisation Index, archived at https://perma.cc/6RQL-95VP.
- 111Thanks to Zach Clopton for this insight.
- 112See Appendix C, Table 6.
- 113As noted in Part I, § 1782 was amended in 1996 to encompass discovery requests related to criminal investigations. In 2009, Congress enacted 18 USC § 3512, which authorizes federal judges to “issue such orders as may be necessary to execute a request from a foreign authority for assistance” with criminal matters. Foreign Evidence Request Efficiency Act of 2009, Pub L No 111-79, 123 Stat 2087 (2009), codified at 18 USC § 3512. Correspondence with the Department of Justice confirmed that, since 2009, the agency has gradually reduced reliance on § 1782 for executing criminal requests and no longer relies on the statute for that purpose. Correspondence with a member of the Department of Justice’s Office of International Affairs (Feb 20, 2019) (on file with author).
- 114See Part III.C.1 (discussing the significance of these refiled cases).
- 115Since the random sample was drawn without replacement from a finite population of comparable size, I modeled it as a random draw from a hypergeometric random variable and used this distribution to calculate 95 percent confidence intervals.
- 116See Appendix C, Table 7. Concentration of civil requests in these federal district courts is not surprising given that American, European, and Asian financial institutions have historically been subject to personal jurisdiction in New York, Latin American financial institutions have traditionally been subject to jurisdiction in Florida, and many technology companies are subject to jurisdiction in California. Thanks to Kevin Benish for this observation.
- 117Fifty-eight of the ninety-four district courts in the federal system received at least one civil request, while thirty-six district courts did not receive any.
- 118In a tiny number of actions, requests originating from tribunals are filed directly with a district court (approximately 1.1 percent) or are conveyed to the district court by a foreign party (approximately 2.8 percent).
- 119The Supreme Court interpreted “interested person[s]” from the statutory language of § 1782 to “reach[ ] beyond the universe of persons designated ‘litigant.’” Intel, 542 US at 256.
- 120Since the random sample was drawn without replacement from a finite population of comparable size, I modeled it as a random draw from a hypergeometric random variable and used this distribution to calculate 95 percent confidence intervals.
- 121See Part III for discussion.
- 122Requests that sought discovery for use in multiple forums were counted toward each category, which is why the percentages add up to more than 100 percent. I double counted because each forum is independently significant.
- 123Year-by-year data are on file with author.
- 124See Appendix B for a full list of the substantive area categories.
- 125Year-by-year data are on file with author.
- 126Born and Rutledge, International Civil Litigation at 967–68 (cited in note 49) (noting that substantive claims involving antitrust, patent, product liability, and other similar cases often result in “sweeping” discovery requests compared to routine contract or tort disputes).
- 127See Appendix C, Figure 4 showing and explaining a graph visualizing a rise in Shannon’s entropy, calculated on the mixture of countries over the study period.
- 128See Appendix B for a full list of each of these categories.
- 129Year-by-year data are on file with author.
- 130Requests that sought discovery for use in multiple countries with different legal system types were counted toward each category, which is why the percentages add up to more than 100 percent. I double counted because each legal system type is independently significant.
- 131Requests that sought discovery for use in multiple countries with different Hague Evidence Convention statuses were counted toward each category, which is why the percentages add up to more than 100 percent. I double counted because each Convention status is independently significant.
- 132Where a request sought discovery for use in countries in multiple regions, it was counted toward each region, which is why the percentages add up to more than 100 percent. To calculate the 95 percent confidence intervals, I first used the hypergeometric distribution to estimate a 95 percent confidence interval for the number of (for example) tribunal requests in the overall population. I then used the hypergeometric distribution a second time to estimate how many requests of this particular sort were made by tribunals. I took a conservative approach and used the lower bound for the number of tribunal requests to calculate the lower bound for the number of requests made by tribunals, etc. This method errs on the side of wider confidence intervals.
- 133Where a request sought discovery for use in countries that fell into multiple categories of any attribute, it was counted toward each category, which is why the percentages sometimes add up to more than 100 percent. To calculate the 95 percent confidence intervals, I first used the hypergeometric distribution to estimate a 95 percent confidence interval for the number of (for example) tribunal requests in the overall population. I then used the hypergeometric distribution a second time to estimate how many requests of this particular sort were made by tribunals. I took a conservative approach and used the lower bound for the number of tribunal requests to calculate the lower bound for the number of requests made by tribunals, etc. This method errs on the side of wider confidence intervals.
- 134For a list of countries with each legal system type, see Appendix B.
- 135For a list of countries with each Hague Evidence Convention status, see id.
- 136As noted in Appendix B, I employed the World Justice Project’s Rule of Law Index. Like other rule-of-law indexes, such as the Worldwide Governance Indicators, Freedom House’s Freedom in the World Index, and the Heritage Foundation’s Index of Economic Freedom, the World Justice Project’s Rule of Law Index has been criticized for conceptual and methodological problems. Without overlooking or discounting these problems, I use the World Justice Project’s Rule of Law Index as an imperfect way to generate a rough picture of the types of legal systems with which federal district courts are interacting in foreign discovery requests, and whether that picture is different for foreign tribunal versus foreign party requests.
- 137See Appendix B (discussing rule-of-law score categories and data).
- 138See Burbank, 57 L & Contemp Probs at 132 (cited in note 43) (explaining that the Convention was “[i]ntended . . . to bridge gaps between the civil law and common law systems”).
- 139Where a request sought discovery for use in countries that fell into multiple categories of any attribute, it was counted toward each category, which is why the percentages sometimes add up to more than 100 percent. To calculate the 95 percent confidence intervals, I first used the hypergeometric distribution to estimate a 95 percent confidence interval for the number of (for example) tribunal requests in the overall population. I then used the hypergeometric distribution a second time to estimate how many requests of this particular sort were made by tribunals. I took a conservative approach and used the lower bound for the number of tribunal requests to calculate the lower bound for the number of requests made by tribunals, etc. This method errs on the side of wider confidence intervals.
- 140See Appendix B.
- 141See id.
- 142This grant rate is calculated by taking the number of cases over the sum of the number of cases granted and the number of cases denied. Cases that did not reach resolution are not included in the denominator. See Appendix C, Tables 14 and 15.
- 143See id.
- 144See Appendix C, Table 15.
- 145See Appendix C, Table 14.
- 146A request may be challenged at the outset if notice was provided. More likely, a request was initially granted ex parte and then subsequently challenged in the form of a motion to quash, motion to vacate, motion to stay, motion for reconsideration, or a motion to compel from the requestor that is opposed. A request may be challenged by the target of discovery, whether party or nonparty to the foreign proceeding, or it may be challenged by the nontarget opposing party. I did not count entries of stipulated protective orders or other requests for confidentiality agreements as contestation. See Appendix B.
- 147These figures are not estimates, as they are based on all requests in 2015.
- 148The grant rate is calculated by taking the number of granted requests over the sum of the number of granted requests and denied requests. Requests that did not reach resolution are not included in the denominator.
- 149The contestation rate is calculated by taking the number of challenged requests over the sum of the number of challenged requests and unchallenged requests (including requests involving a stipulated protective order or other confidentiality agreement).
- 150There were only three contested tribunal requests and one was denied.
- 151To identify the best logistic regression model, I followed a standard best-subset approach: for each model size, I fitted a model with every possible combination of variables and chose the model with the lowest residual deviance. To select the appropriate model size and to avoid overfitting, I then performed cross-validation and considered two metrics that penalize large models, AIC and BIC. BIC and cross-validation both pointed toward a one-variable model containing only contestation, whereas AIC pointed toward a three-variable model containing contestation, target identity, and numerosity of foreign proceedings for which discovery was requested. I additionally performed Firth logistic regression, a penalized form of regression designed to address the problems associated with separated or nearly separated data. See Georg Heinze, A Comparative Investigation of Methods for Logistic Regression with Separated or Nearly Separated Data, 25 Statist Med 4216, 4224–25 (2006). The Firth regression suggested a three-variable model containing contestation, target identity, and the legal system type of the country from which the request originated.
- 152In the one-variable model containing contestation, the absence of contestation was associated with a 2.17 increase in the log-odds of a request being granted, significant at the level of p = 0.001. In the Firth three-variable model, contestation was associated with a 1.72 increase in the log-odds of a request being granted, significant at the level of p = 0.015.
- 153Given the problematic nature of the 2015 data set, however, this should not be taken as evidence against an association between these variables and the likelihood of a request being granted. The 2015 data set had a strikingly high grant rate (over 94 percent), perfect separation along one variable, and near perfect separation along another. Several covariates strongly correlated with each other as well.
- 154See Part III.C.1.
- 155For example, notice might be given informally as a matter of courtesy or incidentally through communication between the target and the foreign opposing party. Id.
- 156See Intel, 542 US at 262.
- 157Although I did not systematically track whether granted discovery requests were conditioned on a reciprocal flow of information, reciprocity is extremely rare. A few examples are discussed below in Part III.C.3.
- 158To find this information, one would have to interview those to whom compelled US discovery was granted and track down each foreign proceeding abroad.
- 159See Part I.B.
- 160See, for example, Texas Keystone, Inc v Prime Natural Resources, Inc, 694 F3d 548, 554 (5th Cir 2012); Government of Ghana v ProEnergy Services, LLC, 677 F3d 340, 343 (8th Cir 2012); Heraeus Kulzer, GmbH v Biomet, Inc, 633 F3d 591, 597 (7th Cir 2011).
- 161Heraeus Kulzer, 633 F3d at 597. See also 28 USC § 1782 (“To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.”).
- 162Hickman v Taylor, 329 US 495, 501 (1947).
- 163See United States v Procter & Gamble Co, 356 US 677, 682 (1958) (“Modern instruments of discovery . . . make a trial less a game of blindman’s buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.”); Hickman, 329 US at 507 (“Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.”); John H. Beisner, Discovering a Better Way: The Need for Effective Civil Litigation Reform, 60 Duke L J 547, 556–63 (2010).
- 164See Paul W. Grimm and David S. Yellin, A Pragmatic Approach to Discovery Reform: How Small Changes Can Make a Big Difference in Civil Discovery, 64 SC L Rev 495, 505–07 (2013) (noting “a lack of active judicial management” despite general agreement that active judicial involvement in discovery “leads to better . . . results”).
- 165FRCP 26(b)(1).
- 166Id.
- 167See Wayne D. Brazil, The Adversary Character of Civil Discovery: A Critique and Proposals for Change, 31 Vand L Rev 1295, 1304 (1978):
Modern discovery [ ] has removed most of the decisive plays from the scrutiny of the court. Because so many civil cases are settled before trial and because the conduct of attorneys is subject only to fitful and superficial judicial review during the discovery stage, much of the decisive gamesmanship of modern litigation takes place in private settings.
- 168See FRCP 26(c)(1) (providing that a party “from whom discovery is sought” can move for a protective order following an effort to resolve the dispute without court action; protective order can be issued to protect from “annoyance, embarrassment, oppression, or undue burden or expense”); FRCP 37 (providing that a party may move for an order to compel discovery following an effort to obtain the discovery without court action).
- 169See FRCP 26, Notes of the Advisory Committee on Rules—1980 Amendment, Note to Subdivision (f) (“There has been widespread criticism of abuse of discovery.”); FRCP 26, Notes of the Advisory Committee on Rules—1983 Amendment (“Excessive discovery and evasion or resistance to reasonable discovery requests pose significant problems.”). See also Herbert v Lando, 441 US 153, 179 (1979) (Powell concurring) (expressing concern that federal discovery rules are “not infrequently exploited to the disadvantage of justice”).
- 170See, for example, Matthew T. Ciulla, Note, A Disproportionate Response? The 2015 Proportionality Amendments to Federal Rule of Civil Procedure 26(b), 92 Notre Dame L Rev 1395, 1405–09 (2017) (noting wide differences in opinion concerning the need for discovery reform).
- 171See Bell Atlantic Corp v Twombly, 550 US 544, 558–60 (2007) (discussing the cost of discovery); Ashcroft v Iqbal, 556 US 662, 684–86 (2009) (same).
- 172FRCP 26, Notes of the Advisory Committee on Rules—1983 Amendment, Note to Subdivision (g).
- 173FRCP 26, Notes of the Advisory Committee on Rules—2015 Amendment.
- 174See id (noting that the factors may not be fully understood at the outset and that the requesting party may not know about the burden or expense, while the requested party may not know about the importance of the sought-after discovery for resolving the underlying issues).
- 175See, for example, Moore v Ford Motor Co, 755 F3d 802, 808 (5th Cir 2014) (explaining that a judge’s discovery decision is reversible only if it is “arbitrary or clearly unreasonable” and results in “prejudice”).
- 176See, for example, Ciulla, Note, 92 Notre Dame L Rev at 1402 (cited in note 170) (noting that the impact of amendments has not been as great as expected); Scott A. Moss, Litigation Discovery Cannot Be Optimal but Could Be Better: The Economics of Improving Discovery Timing in a Digital Age, 58 Duke L J 889, 889–90 (2009) (noting that the “proportionality rules are impossible to apply effectively”).
- 177See Jonah B. Gelbach and Bruce H. Kobayashi, The Law and Economics of Proportionality in Discovery, 50 Ga L Rev 1093, 1114–16 (2016).
- 178See FRCP 45(a)(1)(A)(iii) (stipulating that a subpoena may compel a person to “attend and testify; produce designated documents, electronically stored information, or tangible things in that person’s possession, custody, or control”).
- 179See FRCP 30(b)(1), 45(a)(4).
- 180See FRCP 45(a)(4), (b) (setting out service requirements).
- 181See FRCP 45(a)(2).
- 182See FRCP 45(a)(1)–(2).
- 183See FRCP 45, Notes of the Advisory Committee on Rules—2013 Amendment, Note to Subdivision (f).
- 184See id.
- 185See In re Letters Rogatory from Tokyo District, Tokyo, Japan, 539 F2d 1216, 1219 (9th Cir 1976) (“Letters Rogatory are customarily received and appropriate action taken with respect thereto ex parte.”).
- 186James E. Pfander and Daniel D. Birk, Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction, 124 Yale L J 1346, 1355, 1390–91 (2015).
- 187Id at 1391.
- 188See In re Premises Located at 840 140th Ave NE, Bellevue, Wash, 634 F3d 557, 566 (9th Cir 2011) (likening a discovery request from the Russian government to “an order enforcing the subpoenas of independent administrative agencies, an order granting a subpoena in aid of an extradition proceeding, and an order to appear before the Internal Revenue Service”).
- 189Pfander and Birk, 124 Yale L J at 1379 (cited in note 186). See also United States v Markwood, 48 F3d 969, 976–77 (6th Cir 1995) (emphasizing that “a “district court’s role in the enforcement of an administrative subpoena is a limited one” consisting of determining whether the agency has met statutory and judicially created standards for issuing and enforcing the subpoena).
- 190See Table 2.
- 191See, for example, John H. Langbein, The German Advantage in Civil Procedure, 52 U Chi L Rev 823, 827 (1985) (noting that in Germany, “[d]igging for facts is primarily the work of the judge”).
- 19228 USC § 1782.
- 193See Intel, 542 US at 264–65.
- 194Compare In re Clerici, 481 F3d 1324, 1335 (11th Cir 2007) (explaining that the Intel factors for receptivity and noncircumvention supported granting the request “given that the foreign tribunal here is the Panamanian Court and the Panamanian Court itself issued the letter rogatory requesting assistance”), with Order, Request for International Judicial Assistance from the 12th Family Court in Istanbul, Turkey; Matter of Ekmekçi v Ekmekçi, No 1:15-mc-22425, *1 (SD Fla filed July 1, 2015) (“The statutory requirements set forth at 28 U.S.C. § 1782(a) have been met. Furthermore, the additional factors to be considered . . . weigh in favor of granting the request.”), citing Intel, 542 US at 247.
- 195See Table 2.
- 196The permissible grounds for denying a discovery request under the Hague Evidence Convention include if the request does not comply with Convention requirements (Article 5), if the request is for a matter that is not civil or commercial (Article 1), and if the country to which the request is addressed “considers that its sovereignty or security would be prejudiced thereby” (Article 12). Hague Evidence Convention Arts 1, 5, 12(b), 23 UST at 2557, 2560, 2562.
- 197See In re Premises Located at 840 140th Ave, 634 F3d at 568, 570–72 (holding that the US-Russia Mutual Legal Assistance Treaty governing discovery assistance in criminal matters superseded § 1782’s grant of discretionary authority to district courts); Restatement (Fourth) of Foreign Relations Law of the United States § 309(2) (2013) (“When there is a conflict between a self-executing treaty provision and a federal statute, courts in the United States will apply whichever reflects the latest expression of the will of the U.S. political branches.”).
- 198There were five tribunal requests that were denied in the random sample. All but one of the denials were for technical reasons, such as a technical defect in the application, and without prejudice. The last denial is discussed below in note 199.
- 199See, for example, Transcript of Hearing on Petition for Judicial Review, In re Request for International Judicial Assistance from the National Court of First Instance in Labor Matters No 37 of Buenos Aires, Argentina, No 3:12-cv-00662, *4–8 (D Nev filed Sept 16, 2013), (denying a tribunal request from Argentina in part due to the judge’s belief that the country from which the request originated did not honor American judgments and extradition requests—a ground for denial not permitted under the Convention).
- 200Glock v Glock, Inc, 797 F3d 1002, 1009 (11th Cir 2015).
- 201In re Schlich, 893 F3d 40, 46 (1st Cir 2018), quoting Seattle Times Co v Rhinehart, 467 US 20, 36 (1984).
- 202A Bill to Revise, Codify, and Enact into Law Title 28 of the United States Code, Entitled “Judicial Code and the Judiciary”, HR Rep No 79-2646, 79 Cong, 2d Sess A146 (1946).
- 203Kang v Noro-Moseley Partners, 246 F Appx 662, 663 (11th Cir 2007). See also ProEnergy Services, LLC, 677 F3d at 344; Nascimento v Faria, 600 F Appx 811, 812 (2d Cir 2015).
- 204In re Premises Located at 840 140th Ave, 634 F3d at 566 (quotation marks omitted).
- 205See, for example, Gushlak v Gushlak, 486 F Appx 215, 217 (2d Cir 2012) (stating that “it is neither uncommon nor improper for district courts to grant applications made pursuant to § 1782 ex parte” and listing several examples); Order, Elkind v CCBill, LLC, No 2:14-mc-00030, *1 (D Ariz filed May 9, 2014) (granting ex parte request).
- 206See, for example, In re Ex Parte Application of Société d’Etude de Réalisation et d’Exploitation pour le Traitement du Mais, 2013 WL 6164435, *2 n 1 (ED Pa) (explaining that ex parte applications under § 1782 are justified because the parties will be given adequate notice of any discovery taken pursuant to the request and will then have the opportunity to move to quash the discovery); In re Letter of Request from Supreme Court of Hong Kong, 138 FRD 27, 32 n 6 (SDNY 1991) (“[S]uch ex parte applications are typically justified by the fact that the parties will be given adequate notice of any discovery taken pursuant to the request and will then have the opportunity to move to quash the discovery or to participate in it.”); Interbrew Central Europe Holding BV v Molson Coors Brewing Co, 2013 WL 5567504, *1 (D Colo) (finding that “Applicant’s ex parte request is appropriately made and that Respondents may later seek modification of the discovery herein ordered by way of an appropriate motion”).
- 207See Part III.A (discussing that FRCP 45 requires notification to all parties of discovery requests targeting nonparties).
- 208See In re Hornbeam Corp, 722 F Appx 7, 10–11 (2d Cir 2018) (applying FRCP 45(a)(4)’s notification requirements but nevertheless affirming the district court’s denial of a motion to vacate or quash and refusal to sanction the applicant due to lack of prejudice).
- 209See, for example, Order by Magistrate Judge Arthur Nakazato, In re Ex Parte Application of Nokia Corp, No 8:13-mc-00010, *1 (CD Cal filed May 15, 2013) (denying a § 1782 request without prejudice for failure to comply with Local Rule 7-19 governing ex parte applications in the Central District of California).
- 210See, for example, In re Merck & Co, Inc, 197 FRD 267, 270–71 (MD NC 2000) (observing that “[n]othing in Section 1782 states that the application is to be made ex parte, much less that the Court must entertain the application ex parte,” and concluding that “nothing in Section 1782 prevents the Court in any given case from advancing the process by requiring the notification to take place at an earlier time in order to reduce disruption and conserve judicial resources”) (emphasis in original).
- 211See, for example, Request to File Under Seal, In re Application of Lúcia de Araujo Bertolla for an Order Pursuant to 28 USC § 1782 to Obtain Discovery for Use in a Foreign Proceeding, No 1:17-mc-00284, *1 (SDNY filed April 25, 2018) (Araujo Bertolla Request to File Under Seal) (explaining that the court requested the applicant brief the issue of why the federal rules’ subpoena notice requirement should not apply).
- 212See, for example, Order to Show Cause, In re the Court Order of the Romford County Court of Great Britian Dated May 21, 2009, No 6-11-mc-00028, *1 (MD Fla filed May 6, 2011) (ordering the applicant to explain in writing why the target has not been served per a prior order and threatening sanctions as well as denial of the request). See also Certain Funds, Accounts and/or Investment Vehicles Managed by Affiliates of Fortress Investment Group LLC v KPMG LLP, No 1:14-cv-01801 (SDNY filed Mar 14, 2014), (issuing a summons for a § 1782 request); Summons in a Civil Case, Blue Traffic Ltd v VT iDirect, Inc, No 1:08-mc-00031 (ED Va filed July 7, 2008) (same). For the text of this requirement, see FRCP 4(c).
- 213See, for example, Order, In re Application of Halliburton SAS, No 1:14-mc-00004, *2 (ED Va filed Feb 4, 2014) (Halliburton Application Order); In re Ex Parte Application of Apple, Inc, Apple Retail Germany GmBh; and Apple Sales International, No 3:12-cv-00179, *1 (SD Cal filed Feb 1, 2012) (Apple Application Order); Order to Show Cause Why this Court Should Not Grant Ecuadorean Plaintiffs’ Ex Parte Application for Expedited Service and Enforcement of Subpoenas to Conduct Discovery for Use in Foreign Proceeding Pursuant to 28 U.S.C. § 1782, In re Application of Daniel Carlos Lusitand Yaiguaje, No 3:11-mc-80087, *2 (ND Cal filed May 9, 2011) (Yaiguaje Application Order).
- 214See, for example, Halliburton Application Order at *2 (cited in note 213) (ordering that applicant provide notice to a number of relevant parties); Apple Application Order at *1 (cited in note 213) (same); Yaiguaje Application Order at *2 (cited in note 213) (same).
- 215See, for example, Order, In re Application Pursuant to 28 USC § 1782 of Financial Guaranty Insurance Co v Lehman Brothers, Inc, No 1:11-mc-00085, *2 (SDNY filed Mar 29, 2011).
- 216For background on the “case or controversy” requirement and its constitutional roots, see Martin H. Redish and Andrianna D. Kastanek, Settlement Class Actions, the Case-or-Controversy Requirement, and the Nature of the Adjudicatory Process, 73 U Chi L Rev 545, 563–66 (2006).
- 217See Appendix C, Table 6. Compare Notice of New Case Number and Notice of Judge Assignment, In re Application of Hulley Enterprises Ltd, Yukos Universal Ltd, and Veteran Petroleum Ltd for an Order Pursuant to 28 USC § 1782 to Conduct Discovery for Use in a Foreign Proceeding, No 2:17-mc-00088, *1 (CD Cal filed Sept 26, 2017) (case converted from miscellaneous to civil); Order Directing the Clerk of Court to Redesignate this Matter as a Contested Civil Case for Statistical Purposes, In re Application of H.M.B. Limited Pursuant to 28 USC § 1782 to Conduct Discovery for Use in Foreign Proceedings, No 1:17-cv-21459 (SD Fla filed May 1, 2018) (same), with Order, APR Energy Holdings Ltd v Australia and New Zealand Banking Group Ltd, No 1:17-cv-02784, *1 (SDNY filed Apr 24, 2017) (case converted from civil to miscellaneous); Notice Regarding E-filing, In re Application of Akebia Therapeutics, Inc for an Order Granting Leave to Issue Subpoena for the Taking of Discovery Pursuant to 28 USC 1782, No 5:14-cv-04678, *1 (ND Cal filed Oct 21, 2014) (same).
- 218See, for example, US District Court Northern District of Texas, Electronic Case Filing: Opening a Miscellaneous Case 1 (Nov 2016), archived at https://perma.cc/Y9VU-KR2X.
- 219See In re Biomet Orthopaedics Switzerland GmBh, 742 F Appx 690, 697 (3d Cir 2018) (noting that the lower court erred in concluding that discovery was sought for a criminal appeal when in fact it was sought for a civil trial proceeding).
- 220See id.
- 221See Order, In re Application of Raoul Malak, No 2:14-mc-00089, *4 (D Ariz filed Feb 17, 2015) (Malak Application Order) (“[T]he Court lacks any meaningful information with which to determine whether the such [sic] discovery is relevant to the foreign proceeding.”).
- 222See Memo Endorsement, In re Application of Gorsoan Ltd and Gazprombank OJSC for an Order Pursuant to 28 USC § 1782 to Conduct Discovery for Use in a Foreign Proceeding, No 1:13-mc-00397, *1 (SDNY filed Oct 22, 2014).
- 223See Memorandum and Order Regarding Intervenor’s Motion to Quash and to Vacate, In re: Application of Hanwha Azdel, Inc and Hanwha L&C Corp for Assistance Before a Foreign Tribunal, No 3:13-mc-93004, *2–4 (D Mass filed Oct 29, 2013).
- 224See Marubeni America Corp v LBA Y.K., 335 F Appx 95, 97–98 (2d Cir 2009).
- 225See In re Chevron Corp, 633 F3d 153, 162–63 (3d Cir 2011).
- 226Intel, 542 US at 261.
- 227The fourth discretionary factor and parity, which the Court also identified as “important as [a] touchstone[ ] for a district court’s exercise of discretion in particular cases,” will be discussed in the following section. Id. See also Dodge, 115 Colum L Rev at 2105 (cited in note 52) (noting that § 1782 is motivated by “adjudicative comity,” which the author defines as “deference to foreign courts”).
- 228See Intel, 542 US at 264.
- 229Id.
- 230Id.
- 231Id at 265.
- 232See Certain Funds, Accounts and/or Investment Vehicles v KPMG, LLP, 798 F3d 113, 118 (2d Cir 2015) (commenting that the Intel opinion does not provide guidance on “minimum requirements or tests to be met”).
- 233See Gardner, 69 Stan L Rev at 959–64 (cited in note 86).
- 234See, for example, Order Granting Application in Part for Judicial Assistance Pursuant to 28 U.S.C. § 1782, In re Application of Lúcia De Araujo Bertolla for an Order Pursuant to 28 USC § 1782 to Obtain Discovery for Use in a Foreign Proceeding, No 1:17-mc-00284, *2 (SDNY filed Nov 13, 2017) (“[T]he Discovery Targets are not parties in the proceedings in Brazil and are not expected to become parties thereto, thus, the need for this discovery is more apparent.”); Omnibus Report and Recommendations on Motions to Intervene, Vacate, Quash Subpoenas, and for Protective Order, In re Application of H.M.B. Limited Pursuant to 28 USC 1782 to Conduct Discovery for Use in Foreign Proceedings, No 1:17-cv-21459, *17 (SD Fla filed July 2, 2018) (refusing to “look beyond the subpoenaed party to ascertain the true target of discovery”) (emphasis in original). But see In the Matter of a Petition for Judicial Assistance Pursuant to 28 USC § 1782 by Macquarie Bank Ltd, 2015 WL 3439103, *6 (D Nev) (arguing that the first discretionary factor “militates against allowing § 1782 discovery when the petitioner effectively seeks discovery from a participant in the foreign tribunal even though it is seeking discovery from a related, but technically distinct entity”); Order, In re Application of Parmalat Brasil S.A. Industrial de Alimentos and LAEP Investments, Ltd for an Order Pursuant to 28 USC § 1782 to Conduct Discovery for Use in Foreign Proceedings, No 1:11-mc-00077, *6 (SDNY filed July 26, 2011) (Parmalat Application) (concluding that the first factor is neutral because “whether those same documents are obtainable in Brazil is, at this juncture, unknown”).
- 235See, for example, Bravo Express Corp v Total Petrochemicals & Refining USA, Inc, 613 F Appx 319, 320–21 (5th Cir 2015) (seeking discovery from US targets that had a corporate relationship and joint business operations with the entities that were involved in the underlying disputed acts); Application for an Order Directing ASML US, Inc. to Respond to Requests for Documents Pursuant to 28 U.S.C. § 1782 For Use in Foreign Proceedings, and Supporting Memorandum, In re Application Pursuant to 28 U.S.C. § 1782 of Nikon Corp, No 1:17-mc-00142, *8 (SDNY filed Apr 26, 2017) (seeking discovery from the wholly owned subsidiary of the opposing party in the foreign action).
- 236See, for example, In re Application of Schmitz, 259 F Supp 2d 294, 296 (SDNY 2003) (“Application of section 1782 does not involve an analysis of . . . why a respondent has the documents.”); Ex Parte Application for an Order Pursuant to 28 U.S.C. § 1782 Granting Leave to Obtain Discovery from Quinn Emanuel for Use in Foreign Proceedings, In re Ex Parte Application of Apple, Inc, No 5:12-mc-80124, *1 (ND Cal filed May 25, 2012).
- 237See Kiobel by Samkalden v Cravath, Swaine & Moore LLP, 895 F3d 238, 241 (2d Cir 2018), cert denied, 139 S Ct 852 (2019) (noting that the sought-after documents were sent by Shell to the United States “solely . . . for the purpose of American litigation”).
- 238See id at 241, 246–47.
- 239See Hans Smit, American Assistance to Litigation in Foreign and International Tribunals: Section 1782 of Title 28 of the U.S.C. Revisited, 25 Syracuse J Intl L & Commerce 1, 10–12 (1998) (noting that allowing such discovery is likely to interfere with foreign court processes while making the United States the “clearing house[ ]” for information “all over the world”).
- 240See Sergeeva v Tripleton International Ltd, 834 F3d 1194, 1200 (11th Cir 2016) (holding that § 1782 reaches “responsive documents and information located outside the United States” so long as it is within the “possession, custody, or control of” the discovery target); In re del Valle Ruiz, 939 F3d 520, 524 (2d Cir 2019) (holding that “there is no per se bar to the extraterritorial application of § 1782”). See also FRCP 45(a)(1)(A)(iii). But see Pinchuk v Chemstar Products LLC, 2014 WL 2990416, *4 (D Del) (quashing a discovery request for documents located abroad).
- 241There is a multiway split in the courts on the question of who bears the burden of showing receptivity or the lack thereof. Compare Ecuadorian Plaintiffs v Chevron Corp, 619 F3d 373, 378–79 (5th Cir 2010); Chevron, 633 F3d at 162 (holding that relevant evidence is “presumptively discoverable” unless the party opposing discovery shows offense to the foreign jurisdiction); In re MTS Bank, 2017 WL 3155362, *6 (SD Fla) (“[C]ourts look for authoritative proof that a foreign tribunal would reject evidence obtained with the aid of § 1782.”) (quotation marks omitted) (emphasis in original), with Foda v Capital Health, 2010 WL 2925382, *2 (ND Cal) (placing the burden of proof on the applicant); In re Application of Chevron Corp, 762 F Supp 2d 242, 252 (D Mass 2010) (noting that the targets of foreign discovery requests “are often individuals plucked out of their repose who may . . . not necessarily [have] the wherewithal to mount a defense to an application, let alone . . . prove a negative, i.e., a foreign tribunal’s non receptivity to the discovery sought”) (emphasis in original), Department of Caldas v Diageo PLC, 925 F3d 1218, 1223 (11th Cir 2019) (taking a “middle-of-the-road approach” that does not apply a rigid burden-shifting framework); Order, In re Application of Digitechnic, No 2:07-cv-00414, *6–7 (WD Wash filed May 8, 2007) (not placing the burden on either side).
- 242See, for example, In re O’Keeffe, 646 F Appx 263, 266–68 (3d Cir 2016) (affirming district court’s conclusion that Hague Evidence Convention being in effect between United States and Hong Kong was sufficient indication that Hong Kong courts would be receptive to American judicial assistance). See also In re Servicio Pan Americano de Protección, 354 F Supp 2d 269, 274 (SDNY 2004) (“Venezuela has indicated its receptivity to federal judicial assistance by its signature of treaties facilitating such cooperation.”).
- 243See note 84 and accompanying text.
- 244See, for example, Order Granting Ex Parte Application for Order to Obtain Discovery for Use in Foreign Proceedings, In re Ex Parte Application of ANZ Commodity Trading Party Ltd, No 4:17-mc-80070, *6 (ND Cal filed Aug 4, 2017) (relying on cases cited by applicant in which US courts had previously granted foreign discovery requests from Hong Kong to conclude that Hong Kong is receptive).
- 245See, for example, Bravo Express, 613 F Appx at 325 (“[M]odification of a subpoena is preferable to quashing it outright, and a district court abuses its discretion when it does not explain its reasoning, does not allow the applicant an opportunity to cure any defects, and does not attempt to modify the subpoena to cure any overbreadth.”) (quotation marks omitted).
- 246See, for example, Heraeus Kulzer, 633 F3d at 597 (“German judges can disregard evidence that would waste the court’s time.”); In re Ex Parte Application of Nokia Corp, 2013 WL 6073457, *3 (ND Cal) (“[T]he German court can exclude evidence of marginal probative value.”).
- 247Aetna Life Insurance Co v Haworth, 300 US 227, 240–41 (1937).
- 248See Pfander and Birk, 124 Yale L J at 1357 (cited in note 186).
- 249See id at 1358.
- 250See id at 1450 n 490 (noting that “the Fifth Amendment’s Due Process Clause may provide a more effective instrument for moderating non-contentious forms than a strict adherence to an adverse-party rule that would foreclose the exercise of all judicial power over such matters”).
- 251See id at 1446.
- 252See, for example, Order Granting Joint Motion for a Protective Order, In the Matter of Miasto Poznañ v Skarb Panstwa, No 1:15-mc-00179 (D Colo filed Jan 7, 2016). A high degree of cooperation typically occurs when the nonparty target is a bank or social media company that is willing to comply with the request but needs a § 1782 order to justify compliance to the client whose information is being released. See also Neil A.F. Popovic and Shin Hahn, Pursuing and Responding to Discovery Requests Under 28 U.S.C. § 1782 (Lexology, Mar 29, 2019), archived at https://perma.cc/XD6Y-4R5D.
- 253See, for example, Complaint for Declaratory Relief, Comcast Cable Communications, LLC v Hourani, No 1:15-cv-01724, *2–4 (DDC filed Oct 19, 2015).
- 254See Aetna Life, 300 US at 240–41.
- 255Compare In re Kleimar N.V. v Benxi Iron and Steel America, Ltd, 2017 WL 3386115, *4 (ND Ill) (“[T]here is no question that an entity against whom the discovery will be used has standing to challenge an order allowing discovery under § 1782.”), with Order, In re Application of Chevron, No 1:10-mc-00001, *1 (SDNY filed Aug 24, 2010) (noting that the plaintiffs in the foreign proceeding for which discovery was sought, “whose standing in this matter is debatable to say the least,” had moved to strike some of the filings submitted by § 1782 applicant, who happened to be the defendant in the foreign proceeding).
- 256See, for example, Memorandum and Order, In re Application of Microsoft Corp, No 1:06-mc-10061, *6 n 4 (D Mass filed Apr 17, 2006) (Microsoft Memorandum and Order) (denying the European Commission’s motion to intervene on the grounds that its views have already been received and represented by Novell, Inc, the nonparty target of the § 1782 request).
- 257Intel, 542 US at 261–62.
- 258See, for example, In re Application of Consorcio Minero, S.A. v Renco Group, Inc, 2012 WL 1059916, *4 (SDNY) (granting reciprocal discovery in Peru); Minatec Finance S.À.R.L. v SI Group Inc, 2008 WL 3884374, *9 (NDNY) (granting reciprocal discovery located in Luxembourg).
- 259See Heraeus Kulzer, 633 F3d at 595–99; Kulzer v Esschem, Inc, 390 F Appx 88, 89–90 (3d Cir 2010).
- 260See In re Biomet Orthopaedics Switzerland GmBh, 742 F Appx at 699 (refusing to accept Heraeus’s argument that Biomet’s discovery request should not be granted due to potential exposure of trade secrets because “Heraeus [had] gained access to wide swaths of Biomet’s potentially proprietary information through its own 1782 discovery requests in the Northern District of Indiana and the Eastern District of Pennsylvania”).
- 261See, for example, Astronics Advanced Electronics Systems Corp v Lufthansa Technik AG, 561 F Appx 605, 606 (9th Cir 2014) (discussing competing § 1782 requests from adverse parties to the same foreign proceeding). But see Republic of Ecuador v Connor, 708 F3d 651, 658 (5th Cir 2013) (relying on judicial estoppel to prevent an applicant from taking advantage of a circuit split).
- 262FRCP 26(b)(1). See also, for example, Malak Application Order at *4 (cited in note 221) (“[T]he Court lacks any meaningful information with which to determine whether the such [sic] discovery is relevant to the foreign proceeding.”); Order Re: Application for Discovery Pursuant to 28 U.S.C. § 1782, MetaLab Design Ltd v Zozi International, Inc, No 3:17-mc-80153, *6 & n 1 (ND Cal filed Jan 11, 2018) (concluding that the requested evidence “may be relevant” to the requestor’s counterclaims, but noting in a footnote that the court could not determine whether the applicant’s assertion that the discovery would allow it “to defend the Canadian Action” was “in fact the case”); Alexander v Federal Bureau of Investigation, 194 FRD 316, 325 (DDC 2000) (changing the relevance standard to include that which “bears on, or that [which] reasonably leads to other matters that could bear on, any issue that is or may be in the case”).
- 263FRCP 26(b)(1). The proportionality analysis was originally introduced in 1983. The corresponding committee notes explained that “the rule recognizes that many cases in public policy spheres, such as employment practices, free speech, and other matters, may have importance far beyond the monetary amount involved.” FRCP 26, Notes of the Advisory Committee on Rules—1983 Amendment, Note to Subdivision (b).
- 264See Massen, 83 S Cal L Rev at 883 (cited in note 40) (noting that in the United States, “litigants control most aspects of discovery while the judge’s role is limited to defining the outer boundaries of the proof-gathering process while avoiding active participation”).
- 265Merck & Co, 197 FRD at 270.
- 266See Certain Funds, Accounts and/or Investment Vehicles, 798 F3d at 125.
- 267See Part II.
- 268See id.
- 269See Part II.A.
- 270European Commission Brief at *17 (cited in note 28).
- 271Id.
- 272See Appendix C, Table 14 (showing a steady number of cases every year that reach no resolution).
- 273See Part II.
- 274See In re Accent Delight International Ltd, 869 F3d 121, 135 (2d Cir 2017) (holding that § 1782 “does not prevent an applicant who lawfully has obtained discovery under the statute with respect to one foreign proceeding form using the discovery elsewhere unless the district court orders otherwise”).
- 275See, for example, Order, In re Application Pursuant to 28 USC § 1782 of Financial Guaranty Insurance Co v Lehman Brothers, Inc, No 1:11-mc-00085, *2 (SDNY filed Mar 29, 2011).
- 276See, for example, Letter from Paul A. Crotty, US District Judge, to Judge Enrique Claudio González Meyenberg, In re Operación y Supervisión de Hoteles, S.A. de C.V., No 1:15-mc-00172 (SDNY filed Aug 12, 2015); Letter from Paul A. Crotty, US District Judge, to Judge Enrique Claudio González Meyenberg, In re Operación y Supervisión de Hoteles, S.A. de C.V., No 1:15-mc-00172 (SDNY filed Sept 4, 2015).
- 277See, for example, Araujo Bertolla Request to File Under Seal at *3 (cited in note 211); Matter of the Application of Ching Chung Taoist Association of Hong Kong Ltd, 2016 WL 5339803, *1 (ND Cal) (denying discovery as to one witness but stating that the court may revisit the issue after the Australian court decides pending motion about discovery from that witness); Order, In re Ex Parte Application of Banco Safra for an Order Pursuant to 28 USC Section 1782 to Conduct Discovery for Use in Foreign Proceedings, No 1:16-mc-21971, *3–4 (SD Fla filed Sept 8, 2016) (giving respondents opportunity to obtain Brazilian court decision regarding their asserted privileges and instructing them to submit a status report regarding their prospective request for declaratory relief in Brazil); Parmalat Application at *5–8 (cited in note 234) (staying discovery request pending further action from Brazilian court).
- 278See, for example, Order Directing Mentor Graphics Corporation to File Status Report, In re Application of Mentor Graphics Corp, No 5:16-mc-80037, *1 (ND Cal filed June 15, 2016); Ching Chung Taoist Association, 2016 WL 5339803 at *3 (noting that the applicant provided notice to court regarding status of underlying foreign proceeding).
- 279See, for example, Memorandum and Order on Petition for Discovery for Use in Foreign Proceedings Pursuant to 28 U.S.C. § 1782, In re Application of George W. Schlich, No 1:16-mc-91278, *1–4 (D Mass filed Dec 9, 2016) (examining submissions from both sides to the European Patent Office).
- 280See, for example, Order, In re Application of Jurema Dimas de Melo Pimenta and Dimas de Melo Pimenta Filho Pursuant to 28 USC § 1782 For Judicial Assistance in Obtaining Evidence in This District, No 1:12-mc-24043, *1–2 (SD Fla filed Jan 29, 2013) (ordering movant to seek ruling or guidance from Brazilian court).
- 281See, for example, Letter from Korea Fair Trade Commission, In re Ex Parte Application of Qualcomm Inc, No 5:16-mc-80002, *1 (ND Cal filed Jan 26, 2016); Letter From Korea Fair Trade Commission, In re Ex Parte Application of Qualcomm Inc, No 5:16-mc-80008, *1 (ND Cal filed Jan 26, 2016); Letter From Korea Fair Trade Commission, In re Ex Parte Application of Qualcomm Inc, No 5:16-mc-80005, *1 (ND Cal filed Jan 26, 2016).
- 282Motion of the Commission of the European Communities to Intervene, In re Application of Microsoft Corporation, No 1:06-mc-10061, *1 (D Mass filed Apr 6, 2006); Memorandum of the Commission of the European Communities in Support of Novell, Inc.’s Motion to Quash, In re Application of Microsoft Corp, No 1:06-mc-10061, *1 (D Mass filed Apr 6, 2006). The motion to intervene was denied on the basis that the European Commission’s views were already represented by the other parties. See Microsoft Memorandum and Order at *6 n 4 (cited in note 256).
- 283See In re Application of Schmitz, 259 F Supp 2d 294, 297 (SDNY 2003) (describing the intervention by the German Federal Ministry of Justice); In re Winkler, 2005 US Dist LEXIS 46937, *1–2 (SDNY) (same).
- 284See Kulzer v Esschem, Inc, 390 F Appx 88, 92 (3d Cir 2010) (noting that although the German court at issue could not itself order the sought-after discovery due to German procedural rules, the court “does not restrict receipt of the evidence sought and in fact has postponed a hearing scheduled for April 15, 2010 to September 30, 2010, specifically for the purpose of permitting [the applicant] extra time to pursue its discovery requests in Indiana and Pennsylvania”).
- 285See El Paso Corp v La Comision Ejecutiva Hidroelectrica del Rio Lempa, 341 F Appx 31, 32 (5th Cir 2009) (“The arbitral tribunal issued an order expressing its views on the § 1782 application, noting that it was not receptive to these discovery efforts.”).
- 286See In re Hallmark Capital Corp, 534 F Supp 2d 951, 957 (D Minn 2007) (“[T]he Israeli arbitrator has stated his ‘receptivity’ to this Court’s assistance.”).
- 287See In re Application of Accent Delight International Ltd, 2016 WL 5818597, *2 (SDNY) (discussing that a magistrate judge in Monaco wrote that it was permissible for two corporations to seek discovery in the United States and submit it in their proceeding in Monaco); In re Application of Schmitz, 259 F Supp 2d at 299 (explaining that a presiding judge of a Frankfurt district court filed a letter stating that “[i]f . . . documents from a US–American proceeding are attached to a written statement in the case file, the Court will take notice of this submission”). In In re Application of Schmitz, the Frankfurt judge later changed his mind after finding out that the German Ministry of Justice had opposed it. See Schmitz, 259 F Supp at 299.
- 288See Intel, 542 US at 259 (holding that § 1782 “requires only that a dispositive ruling . . . be within reasonable contemplation”).
- 289See Part III.A.
- 290See Part III.C.1.
- 291See Roger P. Alford, Ancillary Discovery to Prove Denial of Justice, 53 Va J Intl L 127, 143 (2012).
- 292See id. See also Chevron Corp v Naranjo, 667 F3d 232, 236 (2d Cir 2012).
- 293See Republic of Ecuador v Connor, 708 F3d 651, 657–58 (5th Cir 2013).
- 294See Part III.A.
- 295Toward the end of the study period (2013–2017), there were approximately two hundred foreign discovery requests filed per year, see Appendix C, Table 5, whereas there were 292,076 civil filings overall in federal district courts in 2017. See US Courts, Federal Judicial Caseload Statistics 2017, archived at https://perma.cc/UUJ2-FY57.
- 296See, for example, Pamela K. Bookman, Litigation Isolationism, 67 Stan L Rev 1081, 1089, 1115–16 (2015) (describing these doctrines as “avoidance doctrines” and criticizing them for undermining US interests while driving plaintiffs to sue abroad).
- 297See Maggie Gardner, Retiring Forum Non Conveniens, 92 NYU L Rev 390, 394 (2017) (explaining that certain cases dismissed for forum non conveniens were not viewed by the foreign tribunal as an act of comity but rather as an expression of protectionism).
- 298Thanks to Bill Dodge for suggesting this turn of phrase.
- 299European Union Institute for Security Studies, Global Governance 2025: At a Critical Juncture *17 (2010), archived at https://perma.cc/K8NQ-WRKH.
- 300Political scientists have observed that particular issue areas are now governed by “an array of partially overlapping and nonhierarchical institutions,” which can in turn lead to confusion and conflict. Karen J. Alter and Kal Raustiala, The Rise of International Regime Complexity, 14 Ann Rev L & Soc Sci 329, 333 (2018). See also generally Karen J. Alter and Sophie Meunier, The Politics of International Regime Complexity, 7 Perspectives on Polit 13 (2009).
- 301I explore this subject elsewhere. See generally Yanbai Andrea Wang, Procedural Coordination Across Borders (unpublished manuscript, 2020) (on file with author).
- 302PACER is a fee-based “electronic public access service that allows users to obtain case and docket information online from federal appellate, district, and bankruptcy courts, and the PACER Case Locator.” See Administrative Office of the United States Courts, Public Access to Court Electronic Records, archived at https://perma.cc/7GAV-95AX.
- 303See, for example, Engstrom, 65 Stan L Rev at 1214–15 (cited in note 109) (discussing incompleteness in Westlaw’s and Lexis’s databases); Hoffman, Izenman, and Lidicker, 85 Wash U L Rev at 686 (cited in note 109) (same). When I inquired about the exact methodology by which Westlaw gathers its contents, a Westlaw reference attorney explained: “We . . . obtain reported decisions from the court, we have employees who are out acquiring non-published cases constantly and we receive request[s] to add cases from customer and sales reps.” Email from Stephanie Zoet, Academic Account Manager, Thomson Reuters (July 28, 2017) (on file with author). In phone conversations with Westlaw and Lexis representatives and reference attorneys, I was repeatedly told that the exact methodologies by which they compile their respective databases are proprietary information that could not be shared. Both services declined to put me in touch directly with members of their data team.
- 304Engstrom, 65 Stan L Rev at 1215 (cited in note 109).
- 305PACER was initially accessible at terminals in libraries and other designated locations and became available on the Internet in 2001. See Bobbie Johnson, Recap: Cracking Open US Courtrooms (The Guardian, Nov 11, 2009), archived at https://perma.cc/PZ8V-MFGX(noting that PACER was initially accessible at terminals in libraries and other designated locations, and became available on the Internet in 2001); Engstrom, 65 Stan L Rev at 1208 (cited in note 109).
- 306The PACER Case Locator allows searches by case number, title, party name, and date range, but does not allow searches to identify cases for which this information is not known. See Administrative Office of the United States Courts, PACER Case Locator Advanced Case Search, online at https://pcl.uscourts.gov/pcl/pages/search/findCaseAdvanced.jsf(visited May 1, 2019) (Perma archive unavailable).
- 307See Bloomberg Law, Bloomberg Law Docket Coverage, online at https://www.bloomberglaw.com/dockets/coverage/detail(visited May 17, 2020) (Perma archive unavailable) (noting that Bloomberg contains records of proceedings for all federal district courts from 1989 to the present).
- 308Not all documents filed on PACER are text searchable (some are scanned as images), and the same goes for Bloomberg. There does not appear to be any pattern in which documents are text searchable.
- 309See Hoffman, Izenman, and Lidicker, 85 Wash U L Rev at 710 n 138 (cited in note 109) (noting that all opinions in Lexis were present in the Westlaw database, whereas some opinions were in Westlaw but not in Lexis).
- 310See, for example, Order, Whitehead Clan Foreign Trust v Conway, No 2:14-mc-00072, *1 (D Ariz filed Nov 21, 2014) (denying the request because the court could not discern what the plaintiff was requesting).
- 311See Part II.A; Part III.C.1 (discussing refiled cases).
- 312Ossenova Interview (cited in note 53).
- 313Neither I nor OIJA is aware of any pattern in which cases become sealed or have missing documents. Ossenova Interview (cited in note 53).
- 314Like other rule-of-law indexes, such as the Worldwide Governance Indicators, Freedom House’s Freedom in the World Index, and the Heritage Foundation’s Index of Economic Freedom, the World Justice Project’s Rule of Law Index has been criticized for conceptual and methodological problems. Without discounting or overlooking those problems, I use the World Justice Project’s Rule of Law Index as an imperfect way to generate a rough picture of the types of legal systems with which federal district courts are interacting in foreign discovery requests, and whether that picture is different for foreign tribunal versus foreign party requests. See note 135.
- 315Current & Historical Data (World Justice Project), archived at https://perma.cc/S99Y-KY44:
[T]he construction of the indicators and the underlying survey instruments were slightly revised with the publication of each report during those years. For these reasons, we ask all users to use caution in comparing scores over time, though it can be noted that indicator construction and WJP’s survey instruments have remained relatively stable since 2015, so comparisons can be made with more confidence from 2015–2020. A spreadsheet of the current and historical data can be downloaded at the site. - 316The year of a case is determined by the day on which it was filed.
- 317I drew a random sample across the entire study period for detailed coding.
- 318Since the random sample was drawn without replacement from a finite population of comparable size, I modeled it as a random draw from a hypergeometric random variable and used this distribution to calculate 95 percent confidence intervals.
- 319There is a very small number of requests associated with both underlying civil claims and related criminal proceedings or investigations. These mixed requests comprise 2 percent of the sample and were distributed across years. Because this Article focuses on civil requests, I include these mixed cases in the civil requests group.
- 320Since the random sample was drawn without replacement from a finite population of comparable size, I modeled it as a random draw from a hypergeometric random variable and used this distribution to calculate 95 percent confidence intervals.
- 321Where a request came from both a tribunal and another entity, I counted it as a tribunal request. Where the request came from both a party and an interested person, I counted it as a party request. I applied these rules because the Supreme Court instructed judges to gauge foreign tribunal receptivity, which judges can do as long as the foreign tribunal is one of the requestors. See Intel, 542 US at 264–65.
- 322To calculate the 95 percent confidence intervals, I first used the hypergeometric distribution to estimate a 95 percent confidence interval for the number of (for example) tribunal requests in the overall population. I then used the hypergeometric distribution a second time to estimate how many requests of this particular sort were made by tribunals. I took a conservative approach and used the lower bound for the number of tribunal requests to calculate the lower bound for the number of requests made by tribunals, etc. This method errs on the side of wider-than-necessary confidence intervals.
- 323Where a request came from more than one tribunal type, it was counted toward both categories, which is why the percentages add up to more than 100 percent. I double counted because each tribunal type is independently significant.
- 324To calculate the 95 percent confidence intervals, I first used the hypergeometric distribution to estimate a 95 percent confidence interval for the number of (for example) tribunal requests in the overall population. I then used the hypergeometric distribution a second time to estimate how many requests of this particular sort were made by tribunals. I took a conservative approach and used the lower bound for the number of tribunal requests to calculate the lower bound for the number of requests made by tribunals, etc. This method errs on the side of wider-than-necessary confidence intervals.
- 325Where the dispute in the foreign proceeding touched on multiple substance areas, I counted them toward all applicable categories.
- 326I calculated these 2.5 percent and 97.5 percent quantiles for the median using bootstrap resampling (ten thousand bootstrap samples per interval).
- 327This table represents the outcome of foreign civil discovery requests in the randomly drawn sample.
- 328This table shows grant rates in the sampled foreign civil discovery requests, calculated as the number of granted requests divided by the number of granted requests plus the number of denied requests. To calculate the 95 percent confidence intervals for tribunal and party requests, I first used the hypergeometric distribution to estimate a 95 percent confidence interval for the number of (for example) tribunal requests in the overall population. I then used the hypergeometric distribution a second time to estimate how many requests of this particular sort were made by tribunals. I took a conservative approach and used the lower bound for the number of tribunal requests to calculate the lower bound for the number of requests made by tribunals, etc. This method errs on the side of wider-than-necessary confidence intervals.
- 329Shannon’s Entropy has been used in varied contexts to measure the diversity of populations. It captures both “richness” (the number of different categories within a population) and “evenness” (the equiprobability of randomly drawing any particular category). The more categories (here, countries) there are in a population, and the more evenly the population is divided across those categories, the higher Shannon’s Entropy.