The U.S. offers a very powerful litigation tool for participants in international legal proceedings 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 court procedures. This procedure, authorized under 28 U.S.C. §1782, is a relatively quick and efficient method for obtaining crucial information to win a case. Documents and witness testimony can be obtained, including:
- International Wire Transaction Records (U.S. Dollar wires typically transit the U.S.)
- Emails, Correspondence, Phone and Travel Records
- Banking, Credit Card and Business Transaction Records
- Corporate Documents including Shareholder and Board Meeting Records
- Accounting, Employment and Intellectual Property Records
- Property and Real Estate Transaction Records
- Attorney Records (that are not subject to attorney-client privilege)
- Medical and Educational Records
- Deposition testimony of individuals, employees and corporate officers
Document productions and deposition testimony are frequently obtained subject to a court approved protective order restricting dissemination of discovery to only parties to foreign proceedings for which the discovery is being obtained, restricting use of the discovery to a specific foreign proceeding and requiring destruction of the information at a later date.
Recently, in the Southern District of New York, Marks & Sokolov successfully opposed a §1782 applicant’s motion to amend a protective order restricting use of the §1782 discovery to only the British Virgin Islands. The court denied the applicant’s request to modify the protective order to use the discovery in U.S. litigation, stating that to do so would reduce the protections afforded by protective orders to nothing. The New York court also ordered destruction of the discovery, as required by the protective order. See In re Hornbeam Corp., 2020 U.S. Dist. LEXIS 145996 (S.D.N.Y. Aug. 13, 2020).
In the Southern District of Florida, Marks & Sokolov successfully opposed the same §1782 applicant’s similar motion to amend a protective order to use §1782 discovery in U.S. litigation. The Florida court denied the applicant’s motion stating to do so would “defeat the confidentiality and use limitation negotiated and relied upon by the parties” and ordered destruction of the discovery materials as required by the protective order. See In re Hornbeam Corp., 2020 U.S. Dist. LEXIS 51208 (S.D. Fla. Mar. 17, 2020).
Thomas C. Sullivan is an 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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