Any litigant in Taiwan who seeks discovery from a U.S. adversary will face serious challenges, because Taiwan’s legal system lacks a formal discovery system. There are no procedures for interrogatories, document production requests or depositions. Moreover, even if a litigant were to apply to the Taiwan judge and obtain an order requiring discovery responses from a U.S. entity, any attempt to enforce that order would have to be made from Taiwan to the U.S. through a cumbersome letters rogatory process.

However, there may be a solution under U.S. law. 28 U.S.C. §1782 states that the U.S. district court where a person or entity is located may order that person or entity to give testimony or produce documents or things, for use in a foreign or international tribunal, upon application of an interested person. So, is that the answer? May a party to legal proceedings in Taiwan use §1782 to obtain discovery from a U.S. party? Perhaps, but subject to certain limitations.

First, there’s the question of whether the demanding party qualifies as an interested person. Fortunately, if the demanding party is a litigant there should be no problem, as the U.S. Supreme Court has explained in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 254 (2004) that, “litigants are included among, and may be the most common example of, the ‘interested person’ who may invoke §1782.”

Second, is whether the Taiwan proceeding qualifies as a foreign “tribunal.” A lawsuit clearly qualifies, but other adjudicative proceedings may be less clear. In the Intel case, the Supreme Court found the Directorate-General for Competition of the Commission of the European Communities was a tribunal for purposes of §1782, and lower courts have found various other agencies and commissions to be “tribunals,” but there’s less certainty with respect to arbitral tribunals.

In the Intel case, the Supreme Court noted, in dicta, that arbitral tribunals might qualify under §1782, but there appears to be a split between lower courts. The Fifth Circuit and Second Circuit have held arbitral tribunals do not qualify under §1782. El Paso Corp. v. La Comision Ejecutiva Hidroelectrica Del Rio Lempa, 341 F.3d 31 (5th Cir. 2009); Natl. Broadcasting Co., Inc. v. Bear Stearns & Co., 165 F.3d 184 (2d Cir. 1999). The Eleventh Circuit found arbitral tribunals do qualify. Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc. (11th Cir. 2012). Consequently, if the §1782 discovery is sought for use in arbitration outside the U.S., the demanding party should consider filing the request with a district court within the 11th Circuit, assuming the target of the request is located there.

Next is the question of where any requested documents are located. While §1782 clearly requires the person or entity that is the target of the request to be located in the federal district where the request is filed, it does not address the location of the documents or things sought to be produced. In that respect, courts are also split. In Four Pillars Enterprises v. Avery Dennison Corp., 308 F.3d 1075 (9th Cir. 2002), a Taiwanese company filed a §1782 petition seeking an order for a U.S. company to produce documents located in China. The court rejected the request, because the documents were located outside the U.S. and could presumably be obtained through discovery procedures in China. See also Norex Petroleum Ltd. v. Chubb Ins. Co. of Canada, 384 F.Supp.2d 45 (D.D.C. 2005). But see In re Gemeinshcaftspraxis Dr. Med. Schottdorf, (S.D.N.Y. 2006) (finding the court has discretion whether to compel production of documents located abroad).

Courts have struggled with various other questions concerning §1782 requests, such as whether the target of the request can be ordered to produce documents in the possession of its subsidiary, whether the requested information must be admissible in the tribunal for which it is sought or discoverable in that country, whether proceedings must be actually underway in the tribunal or only reasonably contemplated, and whether ordering the U.S. party to submit to discovery would be unfair because it may lack means of obtaining discovery from the other party. As with so many questions, the answers depend largely on the particular facts and the court where the petition is filed.

In any event, it is undisputed that the decision whether to grant a §1782 request lies within the discretion of the court. In Intel, the Supreme Court identified several factors that courts should consider when making that determination:

(1) Whether the material sought is within the foreign tribunal’s jurisdictional reach and thus accessible absent Section 1782 aid;
(2) The nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court jurisdiction assistance;
(3) Whether the Section 1782 request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States; and
(4) Whether the subpoena contains unduly intrusive or burdensome requests.

In other words, a U.S. court may order the requested discovery for use in a foreign tribunal if it feels such an order would satisfy 28 U.S.C. §1782’s “twin aims of 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.” Intel, 542 U.S. 241, 254.

Thus, where one files a §1782 petition in an attempt to circumvent foreign restrictions on information gathering, or in the face of an order from the foreign tribunal expressly denying a comparable discovery request, the petition will likely be rejected. See Kestrel Coal Pty Ltd. v. Joy Global, Inc., 362 F3d 410 (7th Cir. 2004) (rejecting a §1782 petition because the petitioner had already made a similar request in Australia that was denied).

However, if a litigant in Taiwan, or some other country, files the request in U.S. district court in a good faith attempt to obtain information located in the U.S., which would not otherwise be accessible to such litigant (see In re Ex Parte Application of LG Electronics Deutschland GMBH, et al. (S.D. Cal. 2012), it’s entirely possible §1782 may be the solution.

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