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  • Noam Schreiber

Cross-Border Discovery: Section 1782 and Trial Testimony

Under 28 U.S.C., Section 1782, a party to a litigation in a foreign (non-U.S.) country can seek discovery for use in that litigation in a U.S. federal district court. For more on this, see my post here. This section is generally used to obtain pre-trial discovery for use in a foreign (non-U.S.) litigation.


In a recent decision by the United States District Court of the District of Maine, a party to a Canadian litigation sought trial testimony from U.S. citizens and residents of Maine. This request raised the interesting question whether Section 1782 authorizes U.S. federal courts to order witnesses to remotely appear for trial in a foreign case. The federal court pointed out that Section 1782's "language and case law suggest the statute is designed to facilitate pretrial discovery rather than trial testimony." In re Att'y Gen. of Quebec, 2021 WL 4497145, (D. Me. Sept. 30, 2021).


The Canadian petitioner had requested, in the alternative, to order the witnesses to appear for depositions. The court used this alternative request as an elegant way to avoid making a solid ruling on the question presented to it.


So, the decision does not provide us us with any certainty regarding the scope of Section 1782. However, the decision does flag this issue and serves as an issue to be considered when deciding to use Section 1782.


An important take-away: until this matter is settled (if ever) never assume that Section 1782 can be used to secure trial testimony. Section 1782 is a discovery tool and should be used as one. This means that parties should secure 1782 discovery at the proper stage of the foreign litigation and should not wait until the eve of trial to obtain testimony.


Noam


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