Sovereign State as an Interested Person in Discovery Context Pursuant to 28 U.S.C. §1782

In today’s globalized world, where disputes and litigations are not confined to one state’s borders, section 1782 is a valuable tool in the arsenal of parties and attorneys seeking to obtain discovery of evidence located in the U.S. for use in proceedings conducted abroad. This section governs under what conditions U.S. courts may provide assistance to foreign and international tribunals and litigants before those tribunals.

While most elements required for the successful 1782 application are straightforward, there is one that caused significant controversy – that the application be made by an interested person. In particular, the controversy arose as to question whether a sovereign state, i.e. foreign government, falls under the definition of an interested person allowing it to apply for assistance to U.S. courts pursuant to section 1782. On June 22, 2015, a United States District Court for the Southern District of New York answered in the affirmative when it denied motion to vacate an order that granted the Republic of Kazakhstan leave to obtain discovery from a U.S. based law firm pursuant to 28 U.S.C. § 1782 and to quash the subpoena duces tecum subsequently served on the law firm pursuant to that order. In re Republic of Kaz. for an Order Directing Discovery from Clyde & Co. LLP Pursuant to 28 U.S.C. § 1782, 110 F. Supp. 3d 512 (S.D.N.Y. 2015).

At the outset, the Court in Republic of Kazakhstan observed that “[s]everal courts have found that a sovereign is not a person who can be ordered to produce documents pursuant to section 1782, but those cases do not address whether a sovereign can use section 1782 to obtain discovery.” Id. at 515. The Court also noted that “[t]here is a longstanding interpretive presumption that person does not include [a] sovereign.” The Court, however, then pointed out the discretionary nature of 1782 applications and warned that such “presumption is not a hard and fast rule of exclusion” and that “the desire to avoid an asymmetrical result prejudicial to foreign governments in order to encourage reciprocity by foreign governments when the proverbial ball is in a foreign court is particularly apt.” Id. at 515-516. Having considered the remainder of the 1782 elements, the Court concluded that Kazakhstan’s application was properly granted and emphasized that “granting the motion [to vacate] could in fact discourage future assistance to the courts of the United States.”

Consequently, the broad and discretionary nature of discovery pursuant to 28 U.S.C. §1782 allows sovereign foreign states to step into the shoes of an “interested person” and apply to the U.S. courts to obtain evidence to be used in proceedings abroad.