Our legal system is an adversarial system in which the parties are responsible for finding and presenting evidence. Civil litigation is an art of strategy. From where to open a case to who to sue, from drafting the complaint to making a motion, every step should be carefully considered because each decision may significantly impact the final results.
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."
• 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.
Disputes are common between or among businesses. When disputes arise, businesses sometimes choose to resort to legal recourse. Civil litigations where one or more parties are business entities are commonly known as commercial litigations. The topics for commercial litigations can be very extensive. To name a few, they can be about a breach of contract, breach of duty of care, LLC membership disputes, misrepresentation claims, shareholder disputes, tortious interference claims and etc.
We understand that business relationships continue outside the courtroom, so our attorneys take a comprehensive and integrated approach. Here are three important elements that our attorneys always consider when determining whether commercial litigation is good for a client:
1. Future business relationships
It is always easier and more tempting to cut ties than to mend damaged relationships. However, the world is not black and white. Chances are that you may still need the opponent after the trial or at least have to encounter them in the business world. Before you completely ruin the relationship, it might be worth taking a step back and giving alternative dispute resolution (ADR) options a try. Even in the ADR process, you can benefit from a strong and competent representation.
2. Time, Legal Expense, and Opportunity Cost
Needless to say, commercial litigation can be exhausting, time-consuming, and, thus, very costly. It has always been a challenging (almost impossible) task to estimate the total cost of commercial litigation. In addition, the energy and funds you invest in commercial litigation could be used in business development. Let alone the lost opportunities and reputation you might receive for being “difficult.”
3. The Finance of the Other Party
It is possible that you could win a commercial case, and the other party does not have sufficient assets to pay. Then, the victory can be financially meaningless. Thus, checking the other party’s pocket is wise to ensure that your effort, time, and money will not be wasted if you win the case.
Although commercial litigation requires plenty of consideration and resources, sometimes, the fight is worth fighting. If you are not sure whether you have a solid case or if you should choose commercial litigation, contact us today and let us help you.
THEVOZ & Partners specializes in the area of Litigation
Winning a case is more than getting a judgement. It is more about getting the desired the result, which means different things to different people. Whether it be monetary awards, business opportunities or preservation of certain rights, THEVOZ & Partner is here to fight for you and your desired best result. We have communicated with client closely about their goal and the strategy we use. We have advocated for clients in both the U.S. and Switzerland. We take pride in our passion, our innovative thinking, and our dedication.With its international presence, THEVOZ & Partner has an undeniable edge in international litigation. THEVOZ & Partners is also dedicated to cross-border discovery. We help parties who are contemplating or in the middle of litigation process in foreign countries to collect evidence and documents located in the United States through a special procedure. This process does not require the foreign applicant to receive consent from opposing party or acknowledgement from foreign tribunals. With the powerful U.S. discovery tools, foreign parties can obtain important documents and information, which may be the key to winning the litigation or settlement negotiation. If you would like to hear more about this procedure, please contact us today.
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