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A GUIDE FOR GERMAN LAWYERS FOR OBTAINING DOCUMENTS AND TESTIMONIAL EVIDENCE IN THE U.S.FOR USE IN GERMAN LITIGATION

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Section 1782 Discovery: Risks Of Proceedings Ex Parte

by | Mar 19, 2014 | 1782 Blog, Publications

Section 1782(a) of Title 28 of the United States Code (“§1782”) allows litigants and tribunals from outside the United States to request assistance in obtaining documentary and testimonial evidence from sources within the United States.  It is common for federal district courts to grant applications for this type of discovery, ex parte.  The reasoning behind this is that “respondent’s due process rights are not violated because he can later challenge any discovery request by moving to quash pursuant to Federal Rule of Civil Procedure 45(c)(3).”  Gushlak v. Gushlak, 486 Fed. Appx. 215, 217 (2nd. Cir. 2012).  See, e.g.,  Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 2014 U.S. App. LEXIS 531 (11th Cir., January 10, 2014)(affirming denial of motion to vacate Section 1782 discovery order granted ex parte.)
However, in another context, the Supreme Court has warned that ex parte proceedings, “untrammeled by the safeguards of a public adversary judicial proceeding, afford too ready opportunities for unhappy consequences to prospective defendants . . . .” United States v. Minker, 350 U.S. 179, 188 (1956). Given this potential for injustice, counsel for parties seeking ex parte relief must therefore be particularly attentive to their role as an “officer of the court, and, like the court itself, an instrument of agency to advance the ends of justice.” Mallard v. U.S. Dist. Ct. for the So. Dist. of Iowa, 490 U.S. 296, 313 n.4, (1989) (Stevens. J., dissenting) (citation omitted).
Further, under the American Bar Association’s Model Rules of Professional Conduct, as adopted in various forms by 49 states with the notable exception of California, Rule 3.3 requires an ex parte applicant to fully inform the court regarding adverse facts and legal authority:
(a) A lawyer shall not knowingly:
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
Consequently, in an ex parte proceeding, if counsel for an applicant fails to fully inform the court of all relevant and adverse factual and legal issues, in the event the adverse party or target of discovery brings a motion to set aside the discovery order or quash the subpoena, the applicant and its counsel may be vulnerable to collateral attack based upon lack of candor and/or ethical violations, which of course, may significantly influence the court’s discretion permitting discovery.  Further, counsel runs the risk of incurring sanctions or censure.  For example, in In Re GFL Advantage Fund, Ltd., 2003 Phila. Ct. Common Pl. LEXIS 33 (2003), proceeding under state law, counsel did not fulfill its obligations under RPC 3.3(d) and the court revoked an ex parte order granting discovery ordering return of all documents and censuring counsel.   See also Pa. Environmental Defense Foundation v. U.S. Dept. of the Navy, 1995 U.S. Dist. LEXIS 1461 (E.D. Pa. 1995) (Robreno, J.) (Sanctioning attorney, noting “Even beyond the requirements of Rule 3.3(d), an attorney, as an officer of the Court, has an overarching duty of candor to the Court”).
Marks & Sokolov, LLC has extensive experience representing multinational clients in the United States and abroad.  For more information on Section 1782 discovery in the United States, please contact:  Thomas Sullivan at (215) 569-8901 or tsullivan@mslegal.com.Section 1782(a) of Title 28 of the United States Code (“§1782”) allows litigants and tribunals from outside the United States to request assistance in obtaining documentary and testimonial evidence from sources within the United States.  It is common for federal district courts to grant applications for this type of discovery, ex parte.  The reasoning behind this is that “respondent’s due process rights are not violated because he can later challenge any discovery request by moving to quash pursuant to Federal Rule of Civil Procedure 45(c)(3).”  Gushlak v. Gushlak, 486 Fed. Appx. 215, 217 (2nd. Cir. 2012).  See, e.g.,  Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 2014 U.S. App. LEXIS 531 (11th Cir., January 10, 2014)(affirming denial of motion to vacate Section 1782 discovery order granted ex parte.)
However, in another context, the Supreme Court has warned that ex parte proceedings, “untrammeled by the safeguards of a public adversary judicial proceeding, afford too ready opportunities for unhappy consequences to prospective defendants . . . .” United States v. Minker, 350 U.S. 179, 188 (1956). Given this potential for injustice, counsel for parties seeking ex parte relief must therefore be particularly attentive to their role as an “officer of the court, and, like the court itself, an instrument of agency to advance the ends of justice.” Mallard v. U.S. Dist. Ct. for the So. Dist. of Iowa, 490 U.S. 296, 313 n.4, (1989) (Stevens. J., dissenting) (citation omitted).
Further, under the American Bar Association’s Model Rules of Professional Conduct, as adopted in various forms by 49 states with the notable exception of California, Rule 3.3 requires an ex parte applicant to fully inform the court regarding adverse facts and legal authority:
(a) A lawyer shall not knowingly:
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
Consequently, in an ex parte proceeding, if counsel for an applicant fails to fully inform the court of all relevant and adverse factual and legal issues, in the event the adverse party or target of discovery brings a motion to set aside the discovery order or quash the subpoena, the applicant and its counsel may be vulnerable to collateral attack based upon lack of candor and/or ethical violations, which of course, may significantly influence the court’s discretion permitting discovery.  Further, counsel runs the risk of incurring sanctions or censure.  For example, in In Re GFL Advantage Fund, Ltd., 2003 Phila. Ct. Common Pl. LEXIS 33 (2003), proceeding under state law, counsel did not fulfill its obligations under RPC 3.3(d) and the court revoked an ex parte order granting discovery ordering return of all documents and censuring counsel.   See also Pa. Environmental Defense Foundation v. U.S. Dept. of the Navy, 1995 U.S. Dist. LEXIS 1461 (E.D. Pa. 1995) (Robreno, J.) (Sanctioning attorney, noting “Even beyond the requirements of Rule 3.3(d), an attorney, as an officer of the Court, has an overarching duty of candor to the Court”).
Marks & Sokolov, LLC has extensive experience representing multinational clients in the United States and abroad.  For more information on Section 1782 discovery in the United States, please contact:  Thomas Sullivan at (215) 569-8901 or tsullivan@mslegal.com.