1782 Discovery Blog: Marks & Sokolov Obtained Bank Records Revealing $42 Million Fraudulently Transferred From An International Diamond Mining Company To Shell Trading Companies Through New York Based Banks

          The U.S. offers a very powerful litigation tool for participants in foreign court proceedings to obtain bank records, documents and witness testimony from sources within the U.S., even if such evidence is...

Bruce Marks gives an interview on REN TV

September 22, 2020 Finance and elections: United States' opposition to Nord Stream-2 Bruce Marks, former republican Pennsylvania State Senator, gives interview on US's aggressive opposition to Nord Stream-2 project and the US economic benefits. The United states has...

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...

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...

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...

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

by | Jun 15, 2020 | 1782 Blog

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 to take discovery for use in private arbitration before the China International Economic and Trade Arbitration Commission (“CIETAC”), from three persons, three California registered LLCs and Wells Fargo bank, all found within the Northern District of California.  Significant business and asset related documents were ordered to be produced and the managers of the three LLCs were ordered to appear for deposition.

The Court noted the Ninth Circuit has not yet decided whether §1782 extends to foreign private arbitrations and recognized the Second and Fifth Circuits have held that §1782(a) applies to international arbitrations, but only governmental or inter-governmental arbitral tribunals, and not those established exclusively by private parties.  However,the Sixth Circuit, very recently, broke with the Second and Fifth Circuits and held that §1782(a) does apply to strictly private, non-governmental arbitrations. See Abdul Latif Jameel Transp. Co. v. FedEx Corp. (In re Application to Obtain Discovery for Use in Foreign Proceedings), 939 F.3d 710, 717-731 (Sept. 19, 2019).

The California federal court agreed with the Sixth Circuit’s conclusion that the ordinary meaning of “tribunal” draws the conclusion that §1782(a) applies to private arbitral tribunals.  Looking to legislative history the court, like the Sixth Circuit, did not find in the legislative history any clear signal that Congress intended to exclude private arbitral tribunals from “foreign and international tribunals.”  HRC-Hainan Holding Co., LLC, 2020 U.S. Dist. LEXIS 32125, at *21-22.  This case may have a significant impact on Silicon Valley technology companies with agreements to arbitrate disputes outside the Unites States. 

Continuing the Sixth Circuit’s trend, is the recent decision by the Fourth Circuit in Servotronics, Inc. v. Boeing Co., 954 F.3d 209, 210 (4th Cir. 2020) which held that a private arbitration panel under the rules of the Chartered Institute of Arbitrators convened in England, is a “foreign or international tribunal” under § 1782(a) and, therefore, the district court has authority to permit discovery of Boeing employees in South Carolina in connection with that private arbitration.

28 U.S.C. §1782 is a very powerful litigation tool for parties to non-U.S. court proceedings, allowing them to obtain bank records, documents and witness testimony from sources within the U.S., even if such evidence is unobtainable through the home forum’s own discovery procedures.  The types of evidence that can be obtained include International Wire Transaction Records (U.S. Dollar wires typically transit through the U.S.), emails, correspondence, phone and travel records, accounting, banking, credit card and corporate documents such as shareholder and board meeting records.

Thomas C. Sullivan is a senior attorney in the Philadelphia office of Marks & Sokolov LLC.  Mr. Sullivan represents Western, Russian and Ukrainian clients in complex commercial disputes including civil RICO, securities fraud, Foreign Corrupt Practices Act, Convention on the International Sale of Goods and ICC Arbitration matters.  He has litigated numerous Section 1782 discovery matters throughout the United States and was recently published in Obtaining U.S. Discovery For Use In Non-U.S. Tribunals Pursuant To 28 U.S.C. § 1782 (Chapter 7), Juris Publishing, LLC, 2020.

United States:
Marks & Sokolov, LLC
1835 Market Street, 17th Fl.
Philadelphia, PA,19103
Phone: (215) 569-8901
Fax: +1 (215) 569-8912
tsullivan@mslegal.com

Russia:
OOO Marks & Sokolov
21/5 Kuznetsky Most, Entrance 1, Suite 612
Moscow, 107996, Russia
Tel: +7 (495) 626-0606
Tel: +7 (495) 626-0606