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The Globalization of Discovery: The Law and Practice under 28 U.S.C. § 1782


ISBN13: 9789041188403
Published: December 2019
Publisher: Kluwer Law International
Country of Publication: The Netherlands
Format: Hardback
Price: £165.00



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The Globalization of Discovery is the first book to provide a comprehensive overview of the law and practice concerning 28 U.S.C. § 1782 (“Section 1782”).

Dispute resolution is ultimately a quest for curiosity and discovery. However, many jurisdictions do not afford an adequate level of discovery—the process of obtaining information to prepare for trial. Fortunately, pretrial discovery is firmly entrenched in both state and federal laws in the United States (U.S.), and international litigants increasingly look to the U.S.’s generous discovery tools, particularly Section 1782, which provides an avenue to access information from a person or entity residing or found in the U.S. for use in a foreign proceeding.

This book pursues Section 1782’s interpretation through U.S. federal courts, synthesizes all major decisions in this area of law, notes tensions and conflicts where applicable and provides practitioners and adjudicators worldwide with strategic and practical insights into the opportunities and constraints of Section 1782 applications.

What’s in this book:

Among the questions likely to be asked while considering a Section 1782 application, the author offers detailed answers to the following and more:

    Under what circumstances can Section 1782 be invoked? What goes into an application? How can a respondent or intervenor challenge it? When is a person “found” in the district, pursuant to Section 1782? Who qualifies as an “interested person?” What is a “foreign or international tribunal?” Can Section 1782 be used in aid of foreign arbitrations? Can it be used before a foreign proceeding is filed? Can discovery be obtained over documents located abroad? How can the discretionary factors defined in Intel—jurisdictional reach, receptivity, circumvention and burden—be satisfied or challenged? What circumstances have led courts to deny Section 1782 applications?
The author provides an introduction to U.S. discovery concepts and terminology, with comparison to other tools of international discovery such as the Hague Evidence Convention. In addition to providing extensive analysis of judicial decisions interpreting the Section 1782 statutory test and the Intel factors, the book also surveys and synthesizes additional factors considered by the courts, such as the role of good faith and the importance of timing.

How this will help you:

With this invaluable book, practitioners will be able to confidently invoke or defend a Section 1782 application in any U.S. District and maximize chances of success. Adjudicators, global law firms, companies doing transnational business and international arbitration practitioners will approach any Section 1782 application with full awareness of applicable rules of procedure, statutory and judicial tests, and best practices. Ultimately, this book will seek to become the authoritative and a one-stop source for all matters related to Section 1782.

Subjects:
Arbitration and Alternative Dispute Resolution
Contents:
About the Author
Acknowledgments
Introduction: Unlocking the Power of Information
PART I
Foundations, Context, and Historical Evolution
CHAPTER 1
Foundational Concepts of International Discovery
CHAPTER 2
Historical Foundations of Section 1782
PART II
The Law of Section 1782
CHAPTER 3
The Section 1782 Legal Framework
CHAPTER 4
The Information Investors: The Standing Factor and Section 1782 Participants
CHAPTER 5
The Source of Information: The Found Factor and the Location of the Target
CHAPTER 6
The Destination of Information: “For Use in a Foreign or International Tribunal”
CHAPTER 7
Intel Factor I: Jurisdictional Reach Factor
CHAPTER 8
Intel Factor II: The Receptivity Factor
CHAPTER 9
Intel Factor III: Circumvention Factor
CHAPTER 10
Intel Factor IV: The Burden Factor
CHAPTER 11
The Section 1782 Superstructure: Additional Considerations, Factors, and Issues
PART III
The Practice of Section 1782
CHAPTER 12
Information and Strategy: Practical and Strategic Considerations
Table of Cases
Index