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The Question Of Whether 28 U.S.C. §1782 Allows Discovery For Use In Private International Arbitration Is Back Before The U.S. Supreme Court

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1782 Discovery: Marks & Sokolov Enforces Protective Order Against BuzzFeed

by | Oct 7, 2020 | 1782 Blog | 0 comments

28 U.S.C. §1782 allows 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 international forum’s court procedures.  This procedure 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 frequently are obtained for use in international legal proceedings, subject to a court approved protective order restricting dissemination of discovery to particular parties, only or for use only in a specific foreign proceeding.  The protective order may also require physical destruction of the information by a specified date. In the Southern District of Florida, Marks & Sokolov successfully opposed a motion by the news media organization BuzzFeed, to unseal a deposition transcript that was subject to a protective order, designated confidential and with portions marked “attorney’s eyes only.”  BuzzFeed argued it had a First Amendment and common law right of access to the transcript because it had been filed with the court.  However, the court balanced the public’s right to inspect and copy judicial records against the deposition party’s interest in keeping their information confidential. The court determined that the deposition transcript was not a “judicial record” that should be made public, because it was not filed as part of a substantial motion requiring resolution of the merits.  Rather, the transcript was only filed in relation to a discovery dispute over confidentiality designations.  The court also found “good cause” for excluding the transcript from the common-law right of access, because the transcript was subject to a protective order and unsealing would harm the legitimate privacy interests of the deposition witness.  See In re Hornbeam Corp., 2020 U.S. Dist. LEXIS 183522 (S.D. Fla. Oct. 4, 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.


United States:                                                           Russia
Marks & Sokolov, LLC                                              OOO Marks & Sokolov
1835 Market Street, 17th Fl.                                   21/5 Kuznetsky Most, Entrance 1, Suite 612
Philadelphia, PA,19103                                            Moscow, 107996, Russia
Phone: (215) 569-8901                                            Tel: +7 (495) 626-0606