Section 1782 Discovery - Remaining Areas of Uncertainty Concerning Section 1782

Remaining Areas of Uncertainty Concerning Section 1782

Although federal district courts held in 2006, 2007, and 2008 that section 1782 discovery is available in connection with non-US arbitrations, the issue has yet to be decided by any appellate court, and it is possible that an appellate court might be persuaded by pre-Intel appellate decisions that rejected the view that Section 1782 discovery is available in connection with non-US arbitrations.

The case law so far is split as to whether a section 1782 order may compel a person located in the United States to produce documents that are located outside the US.

Some authorities are of the view that Section 1782 authorizes non-parties to produce documents and to give oral testimony but not to answer written interrogatories. At least one recent case, however, did require a non-party to answer interrogatories.

In August 2008, a court in New York held that a German tax authority is a "tribunal" for purposes of Section 1782 discovery.

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