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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).

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).

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.