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 may be used to reach documents located outside the United States. Numerous recent cases have held the same:
- Union Fenosa Gas, S.A. v. Depository Tr. Co., 2020 U.S. Dist. LEXIS 94910 (S.D.N.Y. May 29, 2020) (permitting discovery of The Depository Trust Company in New York relating to Egyptian bonds and payments, with no limitation to documents only in the U.S.)
- In re in re De Leon, 2020 U.S. Dist. LEXIS 42968, at *23 (S.D. Ohio Mar. 12, 2020) (holding §1782(a) allows extraterritorial discovery and approving issuance of document subpoenas to Proctor & Gamble in Ohio for use in the Saudi Arabia Commercial Court)
- In re Top Matrix Holdings Ltd for an Order to take Discovery for use in a Foreign Proceeding Pursuant to 28 U.S.C. 1782, 2020 U.S. Dist. LEXIS 7896, at *16 (S.D.N.Y. Jan. 15, 2020) (noting “[t]hat the information is located in Switzerland is not relevant” to the §1782 analysis and allowing pre-litigation discovery for use in anticipated Swiss litigation against Credit Suisse based upon its failure to prevent and detect a fraudulent scheme perpetrated by its former Russia Desk Relationship Manager, Patrice Lescaudron)
- Accent Delight Int’l v. Sotheby’s, Inc. (In re Accent Delight Int’l), 791 F. App’x 247, 250 (2d Cir. 2019) (holding “§1782 does have extraterritorial reach” and allowing for discovery in the U.S. from Sotheby’s for use in criminal proceedings in Monaco and Paris and civil proceedings in Singapore)
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 and/or the requested documents themselves are located abroad. 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.
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