The Primerus Paradigm - Spring 2018 Page 25

S P R I N G 2 0 1 8

in one matter in which one of the authors
was involved, the parties had to advise
the district court on the restrictions that
French discovery practice rules and
European Community privacy directives
placed on the compulsory disclosure of
personal information, before the court
would permit a subpoena to be issued
for electronic communications and other
information pertaining to one of the
parties.

In another such case, the author

was required to consult with an Irish
barrister and give a primer to the court
about family law proceedings in Ireland
and the background of the proceedings
pending there a task requiring
somewhat delicate handling, as Irish
family court matters are afforded almost
complete confidentiality and are not
readily accessible like those in American
courts.

It is essential, therefore, that

U.S.-based counsel be capable of learning
and summarizing foreign principles for the
court in an understandable manner.
Of course, obstacles sometimes arise.
Numerous district courts have restricted
discovery or even denied it altogether,
reasoning that the foreign courts are the
better arbiters of discovery practice or that
the foreign protections should prevail.

Again, U.S.-based counsel requesting
discovery under Section 1782 must be
prepared to explain principles of the foreign
jurisdiction's evidentiary law and procedure,
in addition to showing that the requested
discovery would not offend traditional
notions of American discovery practice.
Section 1782 gives American attorneys
the ability to act as a tremendous resource
for counsel from other jurisdictions in
obtaining evidence for use in foreign
proceedings. That power, however,
comes with the responsibility to become
well informed on the procedures and
protections given to evidentiary matters in
foreign jurisdictions. Fortunately, Section
1782 is a relatively simple tool to use, and
can provide many favorable opportunities
for American counsel to foster
professional relationships by assisting
their colleagues in other jurisdictions.

1 28 U.S.C. § 1782(a).
2 Schmitz v. Bernstein Liebhard & Lifshitz, LLP, 376 F.3d 79,

84 (2d Cir. 2004); see also McKevitt v. Pallasch, 339 F.3d

530, 532 (7th Cir. 2003).

3 § 1782(a).
4 Id.
5 Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241,

258-259 (2004).

6 See generally In re Letters Rogatory from Tokyo Dist.,

Tokyo, Japan, 539 F.2d 1216, 1219 (9th Cir. 1976).

7 Intel, 542 U.S. at 264-265.
8 Id. at 247, 261-63.
9 § 1782(a) (providing that discovery may not be compelled

"in violation of any legally applicable privilege").

10 Id.
11 London v. Does 1-4, 279 Fed. Appx. 513 (N.D.Cal. 2008)

(affirming denial of motion to quash subpoena to unmask

identities of several anonymous members of Internet

discussion groups).

12 In re Roebers, No. C12-80145 MISC RS (LB) (N.D. Cal.,

July 11, 2012).

13 See, e.g., In re Microsoft Corp., 428 F.Supp.2d 188, 194

(S.D.N.Y. 2006) (district courts should be more reluctant

to permit intrusive discovery under §1782 where the

parties should follow the foreign court's discovery

procedures instead); Intel, 542 U.S. at 261, citing In

re Application of Asta Medica, S.A., 981 F.2d 1, 6 (1st

Cir. 1992) ("Congress did not seek to place itself on a

collision course with foreign tribunals and legislatures,

which have carefully chosen the procedures and laws best

suited to their concepts of litigation"); Euromepa S.A. v. R.

Esmerian, Inc., 51 F.3d 1095, 1100 (3d Cir. 1995) (courts

must consider whether "a foreign tribunal would reject

evidence obtained with the aid of section 1782").