A very interesting article by Matthew Kirtland and Katie Connolly from Norton Rose Fulbright looking at how Section 1782 of Title 28 of the U.S. Code can be used in certain circumstances to obtain U.S. style discovery of documents and sworn testimony in relation to other non-U.S. legal proceedings, which can include international arbitration.
Not being a lawyer I cannot comment on the legal merits of when or how or if this can be used and would suggest a thorough read of the article to help with that, but I believe it is a useful tool for anyone to consider if they are seeking to obtain documents for a matter outside of U.S. legal proceedings.
Although, there are obviously two sides to every matter, so people should be equally prepared for this to be used against them and to have appropriate counter arguments prepared. It is obviously not going to be used in every matter, but where it can be, it is always best to be prepared. Be ready to arm or defend.
Regardless of the use or non-use of this provision, we are seeing an increase in discovery-related work associated with international arbitration matters - be it in the form of helping formulate and respond to issues, managing relevant document sets - specifically looking for documents to be exhibited, or analysing complex and disparate data sets to build models used during expert evidence by the relevant accountants and/or economists.
Data and documents can be central to any legal proceeding regardless of whether there is a common law discovery or disclosure process, and it is essential that these are appropriately collected, managed and analysed to avoid subsequent issues due to incompleteness, inaccuracy or error!
Section 1782 of Title 28 of the US Code permits parties to obtain discovery in the United States in aid of non-US legal proceedings, including – in some instances – international arbitrations. Such discovery can include documents and sworn testimony (eg, depositions). In conducting an arbitration seated outside the United States (or other non-US legal proceedings), it is useful to understand the mechanics, requirements and key issues of Section 1782 discovery