1. AMERICAN DISCOVERY FOR FOREIGN LITIGATION

2. The Federal statute:28 USC 1782(a) “The district court of the district in which a person resides of is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal,…”

3. What “proceedings”? Courts – civil and criminal Administrative agencies The European Commission (a “first instance decision maker”) “Criminal investigations conducted before formal accusation.” Arbitrations – Kaiser Group v. World Bank

4. Who may seek discovery? A foreign court by letter rogatory A litigant in a foreign proceeding “Any interested person” -- Intel v. Advanced Micro Devices, a complainant in an antitrust matter before the European Commission.

5. At what stage of the “proceeding”? Before a litigation commences – The “reasonable contemplation” standard. While on appeal – Brandi-Dohrn v. IKB After completion of all appeals? To obtain facts for reargument not an adequate showing, Euromepa v Esmerian.

6. “For Use in a Proceeding” The discovery sought need not be available under the law of the foreign tribunal – Intel The evidence sought need not be admissible under the law of the foreign tribunal – Brandi- Dohrn

7. From Whom Can Discovery be Obtained? Non-parties to the foreign proceeding. Parties to the foreign proceeding? What if the foreign tribunal has denied discovery? Again, Intel. “Resides or is found”.

8. What is Obtainable? Documents Testimony under the rules of the foreign tribunal A U.S. style deposition.

9. The Exercise of Discretion The view of the foreign tribunal. Admissibility of the evidence in the foreign tribunal Discoverability of the evidence in the foreign jurisdiction – Application of Gianoli The view of the foreign state – Schmitz v. Bernstein Reciprocal discovery

10. Case citations Kaiser Group v. World Bank, 2011 WL 1753966 (D.C.Cir. April 28, 2011) Intel v. Advanced Micro Devices, 542 US 241(US Supreme Court 2004) Brandi-Dohrn v. IKB, 2012 WL 695541(2 nd Cir. March 6, 2012) Euromepa S.A. v. R. Esmerian, Inc., 154 F.3d 24 (2 nd Cir. 1998) In re Gianoli Aldunate (Application of Gianoli), 3 F.3d 54 (2 nd Cir. 1993) Schmitz v. Bernstien Liebhard & Lifshitz LLP, 376 F.3d 79 (2 nd Cir. 2004)