James McLoughlin from Moore & Van Allen sets out his views on the recent Servotronics Inc vs Boeing Co decision from the U.S. Court of Appeals for the Fourth Circuit.  This decision aligned itself with the September 2019 decision by the U.S. Court of Appeals for the Sixth Circuit, Abdul Latif Jameel Transportation Company Limited vs FedEx Corporation, on the use of Title 28, Section 1782, “Assistance to foreign and international tribunals and to litigants before such tribunals.”

Not being a lawyer, I am not going to comment on the legal issues of the case, which the author covers in detail in the article and I 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!