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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).

In re Application of Michael Wilson and Partners, Ltd., 2011 U.S. Dist. LEXIS 90954 (D. Colo. Aug. 15, 2011)

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.

Note on Phoenix Meridian Equity Limited v Lyxor Asset management S.A., CICA No, 4 of 2009 (Court of Appeal of the Cayman Islands) - "The issue raised by the appeal is whether the Chief Justice erred in principle in refusing an application on behalf of Lyxor for an order restraining Phoenix from continuing proceedings in the United States District Court for the Southern District of New York under [ 28 U.S.C. § 1782 ] in the course of which it seeks to depose two individuals (...) who have given witness statements in, and are potential witnesses at the trial of the Cayman proceedings."

"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/

24-8 Mealey's Intl. Arb. Rep. 7 (2009), Volume 24, Issue #8 (August 2009) -- NEW ORLEANS - The Fifth Circuit U.S. Court of Appeals on Aug. 6 affirmed a district court's ruling granting reconsideration and vacating an order granting an ex parte application to obtain discovery to be used in a private international arbitration in relation to disputes over a contract to construct a power plant and provide power in El Salvador (El Paso Corporation v. La Comision Ejecutiva Hidroelectrica Del Rio Lempa, et al., No. 08-20771, 5th Cir.; 2009 U.S. App. LEXIS 17596).

Mealey's International Arbitration Report, Volume 24, Issue 8, August 2009, p. 8 -- ORLANDO, Fla. - A Florida federal judge on Aug. 4 refused to adopt a portion of a magistrate judge's recommendation that the court order discovery for use in an arbitration proceeding over franchise rights in Mexico, finding that the private arbitral panel did not qualify as a foreign or international tribunal under 28 U.S. Code Section 1782 (In re: Application of Operadora DB Mexico S.A. DE C.V., No. 6:09-cv-383-Orl-22GJK, M.D. Fla.; 2009 U.S. Dist. LEXIS 68091)

"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."

Marks & Sokolov Article | United States Law Office Philadelphia Pennsylvania | Russian Law Office Moscow | Ukraine Law Office Kyiv

Daniel Schimmel (Kelley Drye), PLI, International Arbitration 2009 (March 2009) - PDF einer kurzen Powerpoint-Präsentation; nichts Neues

In re an Arbitration in London, England between Northfolk Southern Corp. et al v. ACE Bermuda LTD (Northern District Ill., June 15, 2009). -- With link to fulltext PDF of the decision

March 17, 2009 - Daniel Schimmel (Partner) and Melissa E. Byroade (Associate) for Kelley Drye; PDF download (Manuskript); Publikation in: International Arbitration 2009, Volume 1, published by the Practising Law Institute "The chapter focuses on Section 1782 of Title 28 of the United States Code and international arbitration. It addresses the questions: "First, do international arbitration tribunals with a foreign situs constitute 'foreign tribunals' within the meaning of § 1782?.... Second, is § 1782 actually helpful to international arbitration?" The authors also discuss the Intel Corp. v. Advanced Micro Devices, Inc. case and its impact on subsequent decisions regarding "foreign discoverability" requirements."

In Re Chevron Corp., No. 10-2815 (3d Cir. Feb. 2011)