Section 1782 Discovery in Miami

Evidence for a case abroad is sometimes sitting in Miami, in a local company's files or with a witness who lives here. Section 1782 of Title 28 lets a federal district court order a person who resides or is found in its district to give testimony or produce documents "for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation." 28 U.S.C. § 1782(a). Reiser Law, P.C. handles these applications in the U.S. District Court for the Southern District of Florida, for applicants and for the people and companies who receive them. The district includes Miami-Dade, Broward, Palm Beach and Monroe counties, among others. 28 U.S.C. § 89(c).

Miami's banks, trading companies, real estate holding entities and family offices often hold evidence that matters to litigation and criminal investigations in Latin America and Europe.

What the statute requires

The Eleventh Circuit applies four statutory requirements. The request must come from a foreign or international tribunal or an interested person. It must seek testimony or documents. The evidence must be for use in a proceeding before a foreign or international tribunal. And the person from whom discovery is sought must reside or be found in the district. Sergeeva v. Tripleton Int'l Ltd., 834 F.3d 1194 (11th Cir. 2016); In re Clerici, 481 F.3d 1324, 1331-32 (11th Cir. 2007). Sergeeva also holds that the location of documents is not a per se bar: a respondent in the district can be ordered to produce material kept outside the United States if it has possession, custody or control of that material. Sergeeva, 834 F.3d at 1200.

The foreign proceeding does not have to be pending, but it must be within reasonable contemplation. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 259 (2004). The statute does not limit discovery to material that would be discoverable in the foreign jurisdiction. Id. at 260. Unless the order provides otherwise, discovery proceeds under the Federal Rules of Civil Procedure, and no one can be compelled to testify or produce documents in violation of a legally applicable privilege. 28 U.S.C. § 1782(a).

Who can apply

An application may be made by the foreign tribunal itself or by "any interested person." 28 U.S.C. § 1782(a). The Supreme Court has held that the phrase reaches beyond the parties to the foreign case. Litigants are the most common example, but a complainant who triggered a foreign investigation, as the applicant in Intel had, also qualifies. Intel, 542 U.S. at 256. Whether a non-party qualifies depends on its role in, and stake in, the foreign proceeding.

The court's discretion

A district court is not required to grant an application simply because it has the authority to do so. Intel, 542 U.S. at 264. The Supreme Court identified guiding factors: whether the person from whom discovery is sought is a participant in the foreign proceeding; the nature of the foreign tribunal, the character of the proceedings, and the receptivity of the foreign government or court to U.S. judicial assistance; whether the request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies; and whether the request is unduly intrusive or burdensome. Id. at 264-65. We build applications and oppositions around these factors. The Eleventh Circuit reviews a district court's decision on a § 1782 application for abuse of discretion, which makes the record built in the district court decisive. In re Clerici, 481 F.3d at 1331.

Arbitration after ZF Automotive

Section 1782 does not reach private commercial arbitration. The Supreme Court held that "only a governmental or intergovernmental adjudicative body constitutes a 'foreign or international tribunal' under § 1782," and that neither a private commercial arbitral panel nor the ad hoc investor-state panel before it qualified. ZF Automotive US, Inc. v. Luxshare, Ltd., 596 U.S. 619 (2022). The Court did not rule out that nations could give an ad hoc panel governmental authority; the question is whether they intended to. Id.

How an application proceeds

1. The application. The applicant files an application with a memorandum, a declaration from foreign counsel describing the proceeding and its receptivity to U.S. evidence, and the proposed subpoenas. Applications are frequently filed without advance notice to the target.
2. The order. If the court grants the application, it authorizes the applicant to serve subpoenas, usually under the Federal Rules of Civil Procedure.
3. Service and response. The respondent receives the subpoena and the order and must decide whether to comply, negotiate or move to vacate the order or quash the subpoena.
4. Protective orders. Either side can ask the court, for good cause, to issue an order protecting a person from annoyance, embarrassment, oppression, or undue burden or expense, such as limits on scope or confidentiality restrictions on how the material may be used. Fed. R. Civ. P. 26(c)(1).
5. Production or testimony. Documents are produced and depositions taken, and the material is transmitted for use abroad.

For applicants

We confirm that the foreign proceeding, pending or reasonably contemplated, is before a qualifying tribunal and that the target resides or is found in the Southern District of Florida. We work with foreign counsel on the declarations the court will expect about the proceeding and its receptivity to U.S. evidence. Foreign law firms can read more about working with us as co-counsel. Then we draft requests tied to what the foreign case needs, because overbroad requests invite a burden objection. After the court rules, we serve the subpoenas and handle any protective order or enforcement issues.

For respondents

A subpoena issued under a § 1782 order can be challenged. A respondent can contest the statutory requirements, argue the Intel factors, assert privilege, and ask the court to narrow or quash requests that are unduly intrusive or burdensome. On a timely motion, the court for the district where compliance is required must quash or modify a subpoena that fails to allow a reasonable time to comply, requires compliance beyond the rule's geographic limits, requires disclosure of privileged or other protected matter if no exception or waiver applies, or subjects a person to undue burden. Fed. R. Civ. P. 45(d)(3)(A). Sometimes a negotiated scope and confidentiality order serves the client better than a contested motion. We handle both.

What to have ready

If you are seeking evidence: a description of the foreign proceeding and its stage, the name and role of the foreign court or authority, the evidence you need and why, and what you know about where the target lives, does business or keeps records.

If you received a subpoena: the subpoena, the court's order and the application papers, the date and method of service, and a sense of where the requested documents are kept and who controls them.

Isabella Martinez, a native of Colombia who is fluent in Spanish, is the firm's Spanish-language contact for clients and foreign counsel, and this page is also available en español. More on our practice appears on the Miami business litigation and litigation practice areas pages.

Questions clients ask

Can Section 1782 be used for an international arbitration?

Not for private commercial arbitration. The tribunal must be governmental or intergovernmental. An ad hoc treaty panel qualifies only if the nations intended it to exercise governmental authority.

Does the foreign case need to be filed already?

No. It must be within reasonable contemplation. The statute also covers criminal investigations conducted before formal accusation.

Can a Miami company be ordered to produce documents kept abroad?

Yes, if it has possession, custody or control of them. The Eleventh Circuit has held that location alone is not a bar.

Do I need to be a party to the foreign case to apply?

No. Any interested person may apply. Parties are the most common applicants, but the Supreme Court has held that the term reaches more broadly, including a complainant who started a foreign investigation.

We were served with a Section 1782 subpoena. What now?

Unless the court's order says otherwise, the federal subpoena rules apply. Written objections to a document subpoena must be served before the earlier of the compliance date or 14 days after service, and a motion to quash must be timely. Fed. R. Civ. P. 45(d)(2)(B), (d)(3)(A).

Will the information be kept confidential?

Not automatically. Respondents can ask the court for a protective order limiting how the material is used and who can see it. We often negotiate one as part of the response.

Talk to us

To discuss a § 1782 application or a subpoena you have received, call (305) 726-2003 or email Matthew W. Reiser at matthew@reiserlaw.com. For matters in Spanish, write to Isabella Martinez at isabella@reiserlaw.com or use our contact page. Our Miami office is at 1000 Brickell Ave, Suite 1100, Miami, FL 33131.

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