December 1, 2023


Advocacy. Mediation. Success.

New Decision Regarding Discovery in Aid of Foreign Litigation

In a a lot-predicted view, Decide George B. Daniels of the United States District Court docket for the Southern District of New York recently affirmed the choice of a justice of the peace decide pertaining to the scope of discovery in support of a foreign litigation pursuant to 28 U.S.C. § 1782.  (You can read through a lot more about Portion 1782 and the justice of the peace judge’s fundamental choice in our prior blog write-up, here).  Briefly, Magistrate Decide Gabriel W. Gorenstein grappled with an challenge that has divided federal courts: irrespective of whether Portion 1782 can be made use of to compel the manufacturing of files maintained outside the house the United States.[one]  Magistrate Decide Gorenstein held that the truth that files were being maintained abroad did not bar the discovery sought so long as the files were being inside of the handle of a discovery goal found in the U.S.—in this situation, a New York-primarily based legislation agency with a department office environment in Russia. 

Notwithstanding this obtaining, even so, Magistrate Decide Gorenstein denied the at-challenge discovery software simply because of, amid other factors, problems pertaining to lawyer-shopper privilege and confidentiality beneath Russian legislation.  The Magistrate concluded that it was unclear how Russian legislation would use to the files, and that demanding disclosure could most likely force the goal of the discovery software to violate Russian legislation.  Also, the court docket apprehensive that permitting discovery beneath these circumstances might really encourage Russian courts to force U.S. corporations to violate U.S. disclosure regulations beneath related circumstances.[2]

In a choice dated September five, 2019, District Decide Daniels affirmed Magistrate Decide Gorenstein’s choice.  Decide Daniels held, amid other factors, that Magistrate Decide Gorenstein properly dismissed the software primarily based upon the lack of clarity in applicable Russian legislation.[three]  The candidates argued to Decide Daniels that Russian legislation is somewhat obvious, and that it was the burden of the respondent to demonstrate, by “authoritative evidence,” that the files in query would be inadmissible in the foreign litigation.[four]  Decide Daniels responded that admissibility is irrelevant to the burden imposed by the opportunity conflict with Russian privilege and confidentiality regulations.[five]  Decide Daniels concluded also that Magistrate Decide Gorenstein’s choice had properly relied upon the “twin aims” of Portion 1782: “providing productive suggests of assistance to contributors in global litigation and encouraging foreign nations by example to offer related assistance to our courts.”[6]

Decide Daniels did not expressly deal with Magistrate Decide Gorenstein’s keeping that Portion 1782 could be made use of, in circumstances not which includes the privilege problems present at bar, to compel the manufacturing of files held outside the house of the United States.  The truth that Magistrate Decide Gorenstein’s choice was affirmed, even so, suggests that foreseeable future litigants may well cite his keeping in aid of the extraterritorial software of Portion 1782 to seek out files held overseas.

[one] In re Application of Hulley Enterprises, Ltd., et al., eighteen-mc-435 (S.D.N.Y. Feb. 19, 2019) (Dkt. No. 48) at 19.

[2] Id. at 33-35.

[three] Id. at sixteen.

[four] Id.

[five] Id.

[6] Id. at sixteen-17.