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Lars Bauer

Owen Verrill Jr: Discovery from Non-Parties (Third-Party Discovery) in International Ar... - 0 views

www.wileyrein.com/...RLES%20OWEN%20VERRILL%20Jr.pdf

discovery arbitration non-parties thirds 28-USC-1782 articles

shared by Lars Bauer on 31 Jan 10 - Cached
  • Lars Bauer on 31 Jan 10
     
    by Charles Owen Verrill Jr
Lars Bauer

DLA Piper | Litigants in foreign proceedings may obtain documents, other evidence locat... - 0 views

www.dlapiper.com/s-other-evidence-located-in-us

28-USC-1782 USA Germany case-notes

shared by Lars Bauer on 22 Mar 11 - No Cached
  • Applications of Heraeus Kulzer, GmbH, for Orders Compelling Discovery for Use in a Foreign Proceeding v. Biomet, Inc., (7th Cir. Jan. 24, 2011)
  • Lars Bauer on 22 Mar 11
     
    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).
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

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

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]
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