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A party to a lawsuit in Germany may obtain documents from its adversary in the United States for use in the German litigation, according to the United States Court of Appeals for the Seventh Circuit. The Court's recent decision in Applications of Heraeus Kulzer, GmbH, for Orders Compelling Discovery for Use in a Foreign Proceeding v. Biomet, Inc., (7th Cir. Jan. 24, 2011), highlights the usefulness of the federal statute 28 U.S.C. § 1782 as a means of obtaining documents, testimony and other evidence from opposing parties or third parties located in the United States to support foreign litigation (and possibly arbitration).

The article discusses the interaction between the US law which provides for discovery in aid of foreign litigation (28 USC 1782), the recent 7th Circuit opinion interpreting that statute (the Biomet case), and German discovery proceedings.As we are increasingly seeing "parallel proceedings" in the United States and Germany, especially within the technology and biopharma realms, complex strategic choices are emerging.

Oliver L. Knöfel, Journal of Private International Law, Volume 5, Number 2, August 2009, pp. 281-309 Abstract: Until today, a variety of mechanisms of State courts assisting foreign arbitral tribunals in the taking of evidence has been developed in international legal practice. Unfortunately, none of the legal avenues nowadays available to arbitrators presents a coherent or convincing picture. One has to explore a wealth of diverse and scattered sources when an arbitral tribunal needs or wishes to obtain evidence abroad. What is more, it is often considered excessive to oblige a State to lend assistance to arbitral proceedings held outside its own territory. In 2004, however, the US Supreme Court decided to examine the concept of "tribunal" as used in 28 U.S.C. section 1782 under a functional lens. In the wake of this decision several US District Courts have been reading section 1782 to authorise subpoenas in aid of foreign arbitrations. The new US jurisprudence offers a unique opportunity to reinvent the US-German relationship under the Hague Evidence Convention of 1970. This article aims at broadening the scope of international judicial assistance in its entirety. The plan is to begin by exploring the legal avenues by which arbitral panels can obtain evidence abroad and seek judicial assistance of foreign States' courts de lege lata. Then the impact of the newly established, arbitration-friendly US case-law on judicial assistance as granted under 28 U.S.C. section 1782 will be studied. Finally, the new US jurisprudence will be used as the basis to argue for a different attitude towards arbitration proceedings than that now prevailing under the Hague Evidence Convention of 1970 and under the European Evidence Regulation of 2001. Both instruments should be interpreted to encompass international arbitral tribunals.