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Lars Bauer

Protecting Against Discovery Demands Under 28 U.S.C. § 1782 | by Kevin M. Dec... - 0 views

www.briggs.com/-under-28-usc--1782-07-10-2009

28-USC-1782 arbitration defenses

shared by Lars Bauer on 20 Aug 09 - Cached
  • A disturbing trend in private arbitrations is the use of 28 U.S.C. § 1782 to compel discovery through federal court subpoenas.
  • Subpoenaed companies and individuals have ample defenses to protect against such costly, intrusive, and often untoward schemes.
  • The Roz court curiously read Intel to have changed the landscape, even though the Supreme Court’s decision did not and had no reason to consider § 1782’s use in private arbitrations.  Even more surprising is that other courts have embraced the Roz rationale over the well-reasoned holdings of the Second and Fifth Circuits.
  • ...6 more annotations...
  • A § 1782 target’s first defense should be the NBC and Biedermann precedents, which remain good law.
  • If anything, the Supreme Court’s statutory analysis bolstered the tying of § 1782 demands to foreign-government-related proceedings.
  • Additionally, there are serious constitutional problems with § 1782.  Article III to the Constitution strictly limits federal court jurisdiction to legal disputes either “arising under” federal law, based upon certain party characteristics (e.g., diversity of citizenship), or turning upon maritime or admiralty causes of action.  With § 1782, however, the statute purports to grant jurisdiction regardless of Article III considerations,
  • Although the federal courts have not yet spoken on this defense, it is apparent that § 1782 jurisdiction lacks a solid constitutional basis.
  • Finally, § 1782 applications are granted as a matter of judicial discretion.
  • In sum, there is no reason to surrender to a § 1782 discovery request.
Lars Bauer

Current Legal News - Seattle Washington Criminal Defense Lawyer - Steve Karimi - 0 views

www.karimilawoffice.com/...TOCCurrentLegalNews.asp

28-USC-1782 Weber_Finker

shared by Lars Bauer on 04 Feb 09 - Cached
  • [01/15] Weber v. FinkerIn a case involving the authority of the federal district courts to assist litigants before foreign tribunals with the production of evidence in the U.S., partial grant and denial of petitioner's motion to compel discovery filed pursuant to 28 U.S.C. section 1742(a) is affirmed where: 1) the circuit court rejects a claim that petitioner should have brought her request for judicial assistance under The Treaty Between the United States of America and the Swiss Confederation on Mutual Assistance in Criminal Matters, as opposed to section 1782; 2) the district court was well within its discretion to order discovery pursuant to the Federal Rules of Civil Procedure; and 3) shareholders waived a claim that the district court erred in finding the motion to compel could be treated as a pretrial matter that could be referred to a Magistrate Judge.
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