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Lars Bauer

The Use of Evidence Obtained in US-American Discovery in International Civil ... - 0 views

www.kluwerlawonline.com/toc.php

28-usc-1782 arbitration evidence switzerland usa articles

shared by Lars Bauer on 30 Jun 09 - Cached
  • The Use of Evidence Obtained in US-American Discovery in International Civil Procedure Law and Arbitration in Switzerland [Müller-Chen] (238 KB)
  • Lars Bauer on 30 Jun 09
     
    "The gathering of evidence is a key element in legal proceedings. Contrary to the regulations in Switzerland, the US legal order allows for pre-trial discovery, i.e. the parties are entrusted with the collecting of evidence at an early stage. This diverging approach becomes relevant in civil proceedings or arbitral proceedings in Switzerland with a linkage to the USA. The question arises if and how parties may profit from the US-American discovery procedure. This paper wants to answer the question by examining the use of evidence gathered in US-American discovery in international proceedings before Swiss courts as well as arbitral tribunals located in Switzerland. Part one concentrates on the possibilities and limitations of legal assistance pursuant to 28 U.S.C. § 1782. In part two the utilization of evidence collected in discovery procedure in Switzerland, in the event of a party seeking legal assistance individually, is evaluated. Thereby, special consideration is given to the Hague Evidence Convention and the Swiss ordre public. The paper concludes with a short summary of the author's findings and rationalizations why evidence collected in discovery proceedings should be admitted."
Lars Bauer

Alford: Chevron's Discovery of Crude Outtakes | Roger Alford, Opinio Juris, May 7, 2010 - 0 views

opiniojuris.org/...ns-discovery-of-crude-outtakes

28-USC-1782 discovery arbitration ICSID Chevron-Case case-notes

shared by Lars Bauer on 12 May 10 - Cached
  • Lars Bauer on 12 May 10
     
    "Yesterday a federal court in New York granted Chevron's request for discovery of outtakes from the 2009 documentary Crude about the multi-billion dollar litigation in Ecuador. Chevron's request was pursuant to 28 U.S.C. 1782, which authorizes a judge in the United States to order discovery of evidence to be used in proceedings before a foreign tribunal." -- Also published on Kluwer Arbitration Blog: http://kluwerarbitrationblog.com/blog/2010/05/07/chevrons-discovery-of-crude-outtakes/
Lars Bauer

"Navigating Between German and US Discovery Provisions" - 0 views

patent-in-suit.com/?p=141

28-USC-1782 discovery USA Germany parallel-proceedings articles

shared by Lars Bauer on 11 Oct 11 - No Cached
  • I have a new article, written with my Silicon Valley colleague Tamara Fraizer, live now on IP360 (IP360 subscription required): http://www.law360.com/articles/270953/navigating-between-german-and-us-discovery-provisions
  • Lars Bauer on 11 Oct 11
     
    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.
Lars Bauer

Jenner & Block LLP - December 2008 Update: Arbitration - 0 views

www.jenner.com/...news_item.asp

arbitration discovery 28-USC-1782

shared by Lars Bauer on 12 Mar 09 - Cached
  • Pre-Hearing Discovery From Non-Party To An Arbitration Disallowed.The Second Circuit has held that Section 7 of the Federal Arbitration Act does not authorize an arbitrator to compel pre-hearing document discovery from non-parties to an arbitration.  Life Receivables Trust v. Syndicate 102, 549 F.3d 210 (2d Cir. 2008).  Reversing the district court’s grant of a motion to enforce a discovery subpoena, the court of appeals concluded that documents are discoverable in arbitration proceedings only when brought before the arbitrators by a testifying witness.  The court declined to find exceptions for either closely-related entities or for parties to the arbitration agreement that are not parties to the arbitration itself.  In reaching this result, the Second Circuit followed the Third Circuit, but split with the Eighth Circuit.
  • Discovery On Behalf Of Foreign Tribunals Does Not Encompass Arbitrations.The Southern District of Texas has held that 28 U.S.C. § 1782, which authorizes a district court to order persons residing in the district to give discovery “for use in a proceeding in a foreign or international tribunal,” does not encompass private, international arbitration proceedings.  La Comision Ejecutiva Hidroelecctrica Del Rio Lempa v. El Paso Corp., No. H-08-335, 2008 WL 5070119 (S.D. Tex. Nov. 20, 2008).  The court declined to follow the other district courts that have held to the contrary.  In holding section 1782 inapplicable, the court noted that arbitration is intended as a speedy and economical means of dispute resolution, and that extensive discovery through federal courts would harm international comity.
Lars Bauer

Applied Discovery | Law: Case Summary Alert - 0 views

www.applieddiscovery.com/ws_display.asp?filter=Monthly_Case_Summary_Alert_Detail&item_id=%7B86D0C8FA%2D616F%2D486E%2DB45B%2D8529093F6F90%7D&source_filter=Monthly%5FCase%5FSummary%5FAlert&bookmark={86D0C8FA-616F-486E-B45B-8529093F6F90}&keyword=September%202011

28-USC-1782 discovery cases

shared by Lars Bauer on 11 Oct 11 - No Cached
  • The Michael Wilson law firm had litigation underway in England and Australia against several of its former members or employees who allegedly breached their contractual and fiduciary duties to the firm when they left and took with them clients of the firm involved in mineral, oil and gas, and precious metal mining investment projects in Kazakhstan. Two of the clients were companies with headquarters in an office in Denver.
  • In order to obtain discovery of documents from the two companies in Colorado, the Wilson law firm applied for an Order of Judicial Assistance under 28 U.S.C.S. § 1782
  • The Wilson law firm's application (a copy is available here) was successful, but with one caveat. The court upheld a $500,000 cost bond imposed on the firm due to the cost of the discovery being sought, an earlier order for cost-sharing, and the freezing of certain assets of the firm. The Wilson firm argued that imposition of a pre-judgment cost bond as a condition for Section 1782 discovery was unprecedented, but the court held that a proceeding under Section 1782 was governed by Fed. R. Civ. P. 26, which vested the court "with considerable discretion to specify conditions and limits for discovery, particularly electronic discovery."
  • Lars Bauer on 11 Oct 11
     
    In re Application of Michael Wilson and Partners, Ltd., 2011 U.S. Dist. LEXIS 90954 (D. Colo. Aug. 15, 2011)
Lars Bauer

United Kingdom, Litigation and Arbitration, Effective Use Of Discovery Obtain... - 0 views

www.mondaq.com/article.asp

28-USC-1782 USA UK civil-procedure arbitration discovery

shared by Lars Bauer on 30 Apr 09 - Cached
  • Lars Bauer on 30 Apr 09
     
    Apr 30, 2009, by Sion Richards and Harriet Territt (Jones Day via Mondaq) - "In proceedings before the English courts, there are specific rules of civil procedure that can be used to obtain discovery from U.S.-based persons who are not directly involved in the litigation. However, it is often the case that a direct application to the U.S. courts for discovery pursuant to 28 U.S.C. § 1782 will be quicker and will give rise to a wider scope of disclosure."
Lars Bauer

Obtaining US Discovery Is Not Imperiled When Pursuing Foreign Recovery | International ... - 0 views

www.internationalassetrecoverylaw.com/...pursuing-foreign-recovery.html

28-USC-1782 discovery canada cases

shared by Lars Bauer on 25 Jul 09 - Cached
  • In many foreign jurisdictions, discovery can be onerous from non-parties. For instance, in Canada, discovery will only be allowed if a) the moving party has been unable to obtain the information from other persons, b) it would be unfair to require the moving party to proceed to trial without the opportunity to obtain the discovery and c) the discovery will not entail unreasonable expenses or unfairness to the non-party.
  • Canadian courts have viewed the use of Section 1782 favorably in proceedings pending there.
  • In CC Chemicals Ltd. v. Sternson Ltd., (1980) 116 D.L.R. (3d) 239 (S.C.), the court permitted Section 1782 to fill a procedural gap since it did not otherwise interfere with the Canadian action.
  • ...1 more annotation...
  • In Penty v. Law Society of British Columbia, (1999) 69 B.C.L.R. (3d) 159 (S.C.), the court concluded that a Canadian court will generally be reluctant to prevent a party from gathering evidence extraterritorially. Efforts to gather evidence in the US did not present a comity concern nor an overriding issue of unfairness.
Lars Bauer

Denial of Section 1782 Discovery Based on District Court's Discretion Highlights Differ... - 1 views

blog.internationalpractice.org/?p=1361

28-USC-1782 case-notes law discovery

shared by Lars Bauer on 17 Apr 11 - No Cached
  • Caratube involved a § 1782 petition by the oil company directed at persons and entities in the U.S., which Caratube claimed had information helpful to its prosecution of an international arbitration before ICSID (the International Centre for Settlement of Investment Disputes).  The ICSID tribunal declined to ask Caratube to cease and desist the § 1782 discovery requests.  It did say that it didn’t want the U.S. discovery petition to interfere with the arbitration, and the tribunal reserved on the question whether to admit documents obtained through the § 1782 petition.
  • In the § 1782 proceeding, the District Court exercised its discretion to deny the § 1782 request.
  • the District Court relied on several of the considerations articulated in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004).
  • ...4 more annotations...
  • It found that uncertainty about whether ICSID would accept the documents weighed against granting the discovery and further believed that the nature of the ICSID proceeding – arising by reason of a bilateral investment treaty between the U.S. and Kazakhstan – somehow put the court in a position of possibly interfering with the “parties’ bargained-for expectations concerning the arbitration process”.  The District Court did not analyze whether the ability to get U.S. discovery under § 1782 formed a part of the parties’ expectations in the first place. 
  • The Court was moved by the fact that Caratube had outlined the discovery it thought was necessary in the arbitration and apparently did not include a § 1782 request.
  • Indeed, the Rules of the International Bar Association, which the District Court found persuasive authority as a guideline giving indications regarding the relevant criteria for what documents may be requested and ordered to be produced, says specifically that a party should “take whatever steps are legally available to obtain the requested documents”.  Although the IBA rules suggest that that request go to the arbitral panel, in the U.S. there is a statute that permits the party going directly to the third-party with the documents using the vehicle of a § 1782 petition.
  • In the end the District Court was concerned that Caratube was attempting to “circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States”. 
  • Lars Bauer on 17 Apr 11
     
    In re Application of Caratube, 10-0285 (D.D.C. 2010) [730 F.Supp. 2d 101]
Lars Bauer

Legal Overview - How Foreign Litigants May Obtain American Discovery For Use In Their H... - 0 views

marks-sokolov.com/article_sullivan_01.htm

28-USC-1782 articles arbitration discovery

shared by Lars Bauer on 15 Mar 09 - Cached
  • Williams Industrial Services, LLC v. Steel Equipment Corp., CA NO: 2:08-MC-179-AJS (W.D. Pa. June 24, 2008).
  • III. The Application of §1782 to Private International Arbitration
  • Subsequent to the Supreme Court’s decision in Intel, various courts have granted §1782 discovery in aid of private arbitral matters. In In re Hallmark Capital Corp., the court granted discovery for use in a private Israeli arbitration proceeding. By its Order dated September 13, 2007 denying the discovery target’s motion for reconsideration, the court bypassed National Broadcasting by relying upon Intel’s rejection of restrictive definitional exclusions.39 In In re Application Roz Trading, the court granted an application requesting the production of documents for use before an arbitral panel of the International Arbitral Centre of the Austrian Federal Economic Chamber in Vienna.40 In Williams Industrial Services, LLC v. Steel Equipment Corp., in the absence of opposition the court granted document discovery for use in a private arbitration matter before the International Chamber of Commerce in Paris, France.41
  • ...2 more annotations...
  • 40In re Application Roz Trading, 469 F. Supp. 2d 1221 (N.D.Ga. 2006); 2007 U.S. Dist. LEXIS 2112 (N.D.Ga. 2007) (Denying request for stay pending appeal.) On June 4, 2008 the Eleventh Circuit Court of Appeals granted the appellant Coca-Cola’s motion to dismiss its appeal with prejudice.
  • 41Williams Industrial Services, LLC v. Steel Equipment Corp., CA NO: 2:08-MC-179-AJS (W.D. Pa. June 24, 2008).
  • Lars Bauer on 15 Mar 09
     
    Marks & Sokolov Article | United States Law Office Philadelphia Pennsylvania | Russian Law Office Moscow | Ukraine Law Office Kyiv
Lars Bauer

U.S. Judicial Discovery Assistance for Private Foreign Arbitrations: The Fifth Circuit ... - 0 views

arbblog.lexmarc.us/...ions-the-fifth-circuit-says-no

28-USC-1782 arbitration discovery case-notes Comision-Ejecutiva

shared by Lars Bauer on 27 Aug 09 - Cached
  • Lars Bauer on 27 Aug 09
     
    The Fifth Circuit U. S. Court of Appeals last week reaffirmed its position that 28 U. S. C. 1782, which provides for federal assistance in obtaining discovery for use in foreign and international tribunals, does not apply to private commercial arbitration tribunals. El Paso Corp. v. La Comision Ejecutiva Hidroelectrica del Rio Lempa, 2009 U. S. App. LEXIS 17596 (5th Cir. Aug. 6, 2009).
Lars Bauer

Fifth Circuit Rules on Section 1782 Discovery Motion for International Arbitration Case... - 0 views

www.karlbayer.com/blog

28-USC-1782 arbitration case-notes

shared by Lars Bauer on 19 Aug 09 - Cached
  • The court noted that in Republic of Kazakhstan v. Biedermann International, 168 F.3d 880 (5th Cir. 1999), the court held that “a ‘tribunal’ within the meaning of § 1782 did not include a private international arbitral tribunal, and thus § 1782 did not apply to discovery sought for use in such a tribunal.”
  • the Fifth Circuit was not persuaded by CEL’s argument.  The Court concluded that the issue of whether a private international arbitration tribunal  qualifies as a “tribunal” under § 1782 was not before the U.S. Supreme Court in Intel.
  • Accordingly, the court denied El Paso’s motion to dismiss the appeal as moot and affirmed the district court’s grant of the Rule 60(b) motion.
  • ...1 more annotation...
  • In  El Paso Corporation v. La Comision Ejecutiva, (No. 08-20771) (5th Cir. Aug. 6, 2009), La Comision Ejecutiva Hidroelectrica Del Rio Lempa (”CEL”) is a state-owned utility company in El Salvador and Nejapa Power Company (”NPC”) is a utility company related to  El Paso Corporation (”El Paso”), an  energy corporation based in Houston, Texas.
  • Lars Bauer on 19 Aug 09
     
    Note on El Paso Corporation v. La Comision Ejecutiva, No. 08-20771 (5th Cir. Aug. 6, 2009) where the United States Court of Appeals for the Fifth Circuit held that section 1782 does not apply for a discovery motion for use in a private international arbitration (arbitration in Geneva under the UNCITRAL Arb. Rules)
  • Lars Bauer on 19 Aug 09
     
    Note on El Paso Corporation v. La Comision Ejecutiva, No. 08-20771 (5th Cir. Aug. 6, 2009) in which the United States Court of Appeals for the Fifth Circuit held that section 1782 does not apply for a discovery motion for use in a private international arbitration (arbitration in Geneva under the UNCITRAL Arb. Rules)
Lars Bauer

[PDF] de Grandpré, Obtaining U.S. Discovery in Aid of Canadian Litigation, Co... - 0 views

www.torys.com/...AR2009-9.pdf

28-USC-1782 discovery Canada

shared by Lars Bauer on 08 Mar 09 - No Cached
  • Lars Bauer on 08 Mar 09
     
    Vincent M. de Grandpré, Obtaining U.S. Discovery in Aid of Canadian Litigation, Commercial Litigation Review, Vol. 7, No. 1, February 2009
Lars Bauer

EXTRADITION AND FOREIGN EVIDENCE: 28 USC 1782: Swiss party can use to obtain evidence - 0 views

obtainingforeignevidence.blogspot.com/...82-swiss-party-can-use-to.html

28-USC-1782 discovery decisions Weber_Finker

shared by Lars Bauer on 17 Jan 09 - Cached
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  • The Appellants are shareholders in Itera Group, Ltd., a Cypriot corporation, who all reside in Jacksonville, Florida (“Florida shareholders”).
  • The Florida shareholders appeal the Magistrate Judge’s April 15, 2008 Order granting in part and denying in part Galina Weber’s Motion to Compel Discovery, and thedistrict court’s May 20, 2008 affirmance of that Order.
  • Weber is a citizen of Switzerland and a resident of Monaco. Like the Florida shareholders, she is a shareholder of Itera Group.
  • ...4 more annotations...
  • Weber is involved with two separate foreign legal actions. Both involve business transactions with Itera Group. Weber is the plaintiff in a Cypriot civil action. She is also the defendant in a Swiss criminal action, which Itera instituted against her, alleging that she received property embezzled from the company.
  • Weber filed a civil lawsuit in Cyprus against Itera Group, the CEO of Itera Group, Igor V. Makarov, and Sweet Water Intervest Corporation, which is a British Virgin Islands corporation that Weber alleges is controlled by Makarov.
  • After Weber instituted the Cypriot action, Gas Itera, an Itera Group subsidiary, filed criminal charges against Weber in Switzerland, alleging that Weber embezzled Itera Group assets.
  • The Supreme Court held in Intel that discovery under § 1782 is not limited to discovery that would be allowed under United States law “in domestic litigation analogous to the foreign proceeding.” See Intel, 542 U.S. at 263, 124 S. Ct. at 2483.
  • Lars Bauer on 17 Jan 09
     
    The Eleventh Circuit in Weber v Finker ruled that a Swiss national can use 28 USC 1782, and is not limited to the Swiss-US mutual legal assistance treaty, for purposes of obtaining evidence in Swiss proceedings, which include a Swiss criminal proceeding.
Lars Bauer

Skillful Ways of Gathering and Using Discovery Abroad | International Asset Recovery La... - 0 views

www.internationalassetrecoverylaw.com/...nd-using-discovery-abroad.html

civil-procedure discovery netherlands 28-USC-1782 usa

shared by Lars Bauer on 15 Dec 09 - Cached
  • For instance, in the Netherlands, Dutch courts have held that evidence obtained under Section 1782 may be used in proceedings there.  Under Dutch civil procedure, a party may request production of documents. Courts have decided that only documents relevant to the outcome of the proceedings will be produced and to grant such request, the  applicant's claim must be well-reasoned and at least not be obviously without merit. If it is not certain that the documents exist, Dutch courts will not order their production. There is also a conflict among court decisions as to whether only documents where the applicant is a party to the legal relationship can be produced. Hence, Dutch discovery can be very limiting.
  • Dutch courts have ruled that evidence obtained pursuant to Section 1782 is admissible in the Dutch proceeding since it was not unlawfully obtained.
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

Third Circuit Weighs In Chevron Ecuador Matter, Permitting § 1782 Discovery B... - 0 views

blog.internationalpractice.org/?p=1353

28-USC-1782 case-notes law discovery

shared by Lars Bauer on 17 Apr 11 - No Cached
  • In Re Chevron Corp., No. 10-2815 (3d Cir. Feb. 2011), involves a review by the United States Court of Appeals for the Third Circuit of a District Court’s order granting Chevron discovery under 28 U.S.C. § 1782 (see the discussion the use of U.S. discovery in international proceedings in our e-book, International Practice: Topics and Trends).
  • Lars Bauer on 17 Apr 11
     
    In Re Chevron Corp., No. 10-2815 (3d Cir. Feb. 2011)
Lars Bauer

Applying Intel to § 1782 Requests for Discovery in Arbitration | by Jessica W... - 2 views

DISCOVERING DISCRETION: APPLYING INTEL TO § 1782 REQUESTS FOR DISCOVERY IN ARBITRATION by Jessica Weekley Case Western Reserve Law Review, Vol. 59, No. 2, Winter 2009, p.535

28-USC-1782 arbitration articles

started by Lars Bauer on 25 Aug 09 no follow-up yet
Lars Bauer

Handler/Tennyson, International Discovery Requests Under 28 U.S.C. § 1782 (Wi... - 0 views

www.daypitney.com/...dp_2096.pdf

28-USC-1782 basics

shared by Lars Bauer on 05 Feb 09 - No Cached
  • Lars Bauer on 05 Feb 09
     
    Jonathan I. Handler & Erica Tennyson, Day Pitney LLP, Committee on Pretrial Practice & Discovery
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