Extra-Statutory Discovery Requirements: Violating the Twin Purposes of 28 U.S.C. Section 1782

Authors

Christopher W. Sanzone

First Page

117

Abstract

This Note analyzes Section 1782 of United States Code Chapter 28 and its role in the realm of international judicial assistance. The twin aims of Section 1782 are: (1) to provide efficient means of assistance to participants in foreign litigation, and (2) to encourage foreign countries by example to provide similar assistance to U.S. litigants in court. This Note posits that these goals are violated when a district court, considering a request for documents, imposes a threshold, extra-statutory requirement that the material requested be discoverable in the foreign jurisdiction where the litigation is pending.

After analyzing the legislative history of Section 1782, including the commentary of persons involved in the drafting of its most current version, the Note delves into the case law that both supports and opposes the threshold discoverability requirement. The Note then examines why the Second Circuit, in Euromepa S.A. v. Emersian, Inc., correctly determined that imposing a threshold discoverability requirement is improper. The Note concludes by suggesting the most prudent approach for a district court when considering a Section 1782 request in light of concerns of comity and the international legal system.

Recommended Citation

Christopher W. Sanzone, Extra-Statutory Discovery Requirements: Violating the Twin Purposes of 28 U.S.C. Section 1782, 29 Vanderbilt Law Review 117 (2021)
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol29/iss1/4