1782 Discovery Blog: U.S. Courts Remain Spilt On Allowing §1782 Discovery For International Arbitration

          The Second Circuit has reinforced the spilt among the circuits whether 28 U.S.C. §1782 may be utilized to obtain evidence for use in private international arbitrations outside the United States.  In Hanwei Guo v. Deutsche Bank Sec., 2020 U.S. App. LEXIS...

Bruce Marks Evaluates US Supreme Court Decision on Electors to RIA News

July 8, 2020 Bruce Marks comments the Supreme Court decision where state may require presidential electors to support the winner of its popular vote and may punish or replace those who don’t, settling a disputed issue in advance of this fall’s election. As the Court...

Tom Sullivan participates in the virtual book launch webinar “Obtaining Evidence for Use in International Tribunals under 28 U.S.C. Section 1782”

June 26. 2020 https://www.youtube.com/watch?v=5WtFz6j5_os Transnational discovery is a vitally important part of international litigation. An increasingly important role has been discovery in the United States of information that can be used in international and...

Changes in the Application of Double Taxation Agreements by the Russian Federation

Expected new rules pertaining to taxation at source under Russian bilateral tax treaties could apply as early as January 2021.  There is no information yet as to whether either Russia or the US extended any proposals to each other to amend the existing tax treaty....

Bruce Marks gives interview to RIA News on the suspension of Bolton’s book publication

June 16, 2020 Bruce Marks gives an interview to RIA News on the possibility of suspension of Trumps' ex-adviser, John Bolton, book publication. Justice Department sued Mr. Bolton past week to block the book's release and to demand that copies be retrieved. Officials...

Some advice from victims of voter fraud who won the day

June 11, 2020 By Bruce S. Marks and Mike Roman "El Nuevo Metodo de Votar."  The year was 1993.  Control of the Pennsylvania state Senate turned on a special election in Philadelphia.  Although the district was heavily Democratic, the...

1782 Discovery Blog: California Federal Court Upholds §1782 Discovery For Private Foreign Arbitration Impacting Silicon Valley

In HRC-Hainan Holding Co., LLC v. Yihan Hu, 2020 U.S. Dist. LEXIS 32125, at *11-12 (N.D. Cal. Feb. 25, 2020), the United States Court for the Northern District of California, which encompasses Silicon Valley, authorized  Chinese and Delaware registered companies...

1782 Discovery Blog: The Long Arm Of §1782 Discovery Is Used To Reach Documents Outside The U.S.

The Second Circuit in In re del Valle Ruiz, 939 F.3d 520 (2d Cir. 2019) and the  Eleventh Circuit in Sergeeva v. Tripleton Int'l Ltd., 834 F.3d 1194 (11th Cir. 2016) have held there is no per se bar to the extraterritorial application of 28 U.S.C. §1782 and that it...

COVID-19 Update: Russia Announces New Measure To Support Tenants (Federal law No. 166-FZ dated June 8, 2020)

It is expected that as a result of Russia’s many Covid-19 related restrictions on travel and economic activity, many commercial tenants will be unable to use leased properties to generate income to pay rent, while many landlords will continue to be obligated to make...

1782 Discovery Blog: The Second Circuit Affirms §1782 Discovery May Be Used To Obtain Documents From Outside The U.S.

In In re del Valle Ruiz, 939 F.3d 520 (2d Cir. 2019), the Second Circuit held there is no per se bar to the extraterritorial application of 28 U.S.C. §1782 and that it may be used to reach documents located outside of the United States. In the Southern District of New...

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.