Foreign civil lawsuits, private arbitrations using § 1782 to facilitate discovery
Let’s say you have a client who is a party to an arbitration proceeding pending in Buenos Aires, Argentina. In your investigation of the matter, you discover that an individual living in Miami, Florida, may have critical information relating to your client’s claims. You want to obtain information from this witness, but Argentine procedural rules do not afford you with the adequate means to obtain it. You could go through the Hague Convention and try and get the information that way, but you are worried that the process may take too long and ultimately may not be fruitful.
A previously under-utilized alternative is to commence an action under 28 U.S.C. § 1782 and request that the Southern District of Florida — which is the federal district court located in Miami — assist you in obtaining evidence from your Miami-based witness. If granted, your § 1782 request will allow you to use most of the discovery procedures available to U.S. litigants to obtain information from the witness — from document requests to depositions.
Increase in § 1782 filings in South Florida’s federal district court
Although requesting assistance from U.S. courts to facilitate discovery for use in foreign proceedings is nothing new — federal laws were on the books allowing for this procedure as early as 1855 — South Florida’s federal district court has seen an uptick in § 1782 filings, mostly dealing with requests from litigants with arbitrations and lawsuits pending in Latin American jurisdictions. In the past two years alone, approximately 43 § 1782 actions have been initiated in the Southern District of Florida. Although this number includes requests for information from other nations relating to criminal investigations and prosecutions, a fair amount of the 43 § 1782 actions filed in the Southern District in the past two years relate to civil lawsuits and private arbitrations pending in other countries.
And most often than not, the Southern District is allowing the foreign litigants to proceed with discovery and only rejecting such efforts on rare occasions (that said, although they will allow discovery to go forward pursuant to § 1782, a review of the cases shows that the federal district judges will not hesitate to narrow the scope of the discovery requests and subpoenas and will not allow for fishing expeditions on the part of foreign litigants). Indeed, the Southern District’s liberal granting of requests under § 1782 is in line with the broad interpretation of the statute given by the Eleventh Circuit Court of Appeals, which recently determined that § 1782 also applies to arbitrations.
A powerful weapon for foreign legal practitioners
Many lawsuits and arbitration proceedings pending abroad, particularly in Latin America, will have a Miami angle — for example, a bank account belonging to one of the foreign litigants may be found in one of our banks or a piece of real estate property purchased with monies belonging to one of the parties may be located here. As long as there is a hook linking the foreign action to a witness, entity, or thing located in Miami, an action pursuant to § 1782 will be a powerful weapon in the arsenal of the foreign legal practitioner, and can lead not only to the discovery of critical evidence that can be used in the foreign proceeding, but also can be a good way of obtaining informational leverage over your opponent.