The U.S. discovery system is quite powerful and liberal. Can you imagine using the U.S. legal discovery system to obtain evidence located in the U.S. for litigation outside the United States? §1782(a) puts the power of the U.S. discovery regime into the hands of foreign attorneys. In general, 18 USCS § 1782(a) allows foreign "interested persons," litigants and tribunals to acquire evidence using the U.S. discovery process by filing a section 1782 application. The U.S. district to which the section 1782 application is filed has the discretion to approve the application when the following requirements are met:

i. Person from whom discovery is sought resides or is found in the district court district to which application is made.

ii. Discovery be used in a proceeding before a foreign tribunal; and

iii. Application be made by a foreign or international tribunal or any interested person iv. "a person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege."

When a district court decides whether to grant a 1782(a) application, the district court should consider the following factors:

• Whether the party or person from whom the application seeks evidence is a party in the foreign proceeding or not. "If the person for whom 1782 request is made is a participant in the foreign proceeding, the need for §1782(a) aid generally is not as needed as when evidence is sought from a nonparticipant." Because a foreign tribunal has jurisdiction over those, who appear before it and can itself order evidence production.

• "The nature of the foreign tribunal, the character of the proceedings, and the receptivity of the foreign government or the court agency abroad to US federal-court judicial assistance."

• Whether 1782(a) application "conceals" an attempt to circumvent a foreign country.

• Whether the 1782(a) application is unduly intrusive or burdensome.

Although the supreme court never clarified how to apply these Intel factors, "in weighing these factors, the court must be mindful of the "twin aims of the statute: providing efficient means of assistance to participants in international litigation in our federal courts and encouraging foreign countries by example to provide similar means of assistance to our courts."

If you have a case or are thinking of opening a case outside the U.S. and would like to obtain evidence located in the United States, we'd like to hear from you.