Can a War on Terror detainee confirm that the CIA performed enhanced interrogations at black sites in Poland? Can a Hong Kong investor get evidence located in Michigan for an arbitration in Berlin? These questions were recently before the United States Supreme Court. While the former question is more intriguing than the latter, what these questions share is that they both implicate 28 U.S.C. § 1782. The detainee of the War on Terror requested the black site information from former CIA contractors using § 1782.
In the arbitration case as well, the investor used the statute to compel discovery from its opponent.
Whether used for dramatic cases touching on national security issues or run-of-the-mill commercial disputes, § 1782 is a useful discovery tool—so useful that it has lent itself in recent years to abuse.
Section 1782 allows U.S. district court judges to provide assistance to foreign or international tribunals with obtaining testimony and documents.
The district court can order a person residing or found in the district to produce testimony, a document, or other evidence.
The statute codifies the ancient principle of judicial assistance, rooted in comity: Judges of one jurisdiction help the judges of a foreign jurisdiction, and they do so in hopes that the beneficiaries will do the same in due course.
As discovery requests under § 1782 become increasingly common,
the recent prominence of § 1782 requests in the Supreme Court’s docket is unsurprising.
With the rise of § 1782 discovery, rethinking the contemporary practice under that statute is as important as ever. Recent empirical findings show not only significantly more usage of § 1782 but also that growing trends of § 1782 practice implicate constitutional concerns
and raise questions about how faithfully courts are carrying out Congress’s will.
While in 2004 a majority of the Supreme Court declined to adopt “supervisory rules” to govern § 1782 requests, reasoning that “[a]ny such endeavor at least should await further experience with § 1782(a) applications in the lower courts,”
almost two decades of further experience have taught that practice under § 1782 needs reworking.
At stake is abuse of the judicial power of the United States.
Simply put, the problem is that § 1782 requests increasingly come not from other countries’ courts or tribunals but rather from private parties, often without the relevant foreign court’s knowledge.
Instead of being used to assist foreign courts, § 1782 has become a weapon in the arsenal of transnational corporations with which to attack similarly transnational competitors.
This is an abuse of the judicial power vested in the federal judiciary and a departure from Congress’s intent behind § 1782.
Furthermore, § 1782 is one—even if only a small one—of the elements of the United States’ attitude toward its place in the world.
As the U.S. role in global affairs stands at a crossroads, it is important to examine the nation’s outward-facing judicial practices.
This Note rethinks the latest trends in § 1782 practice from a historical perspective. The histories of both judicial assistance for the gathering of evidence generally
and § 1782 specifically
suggest that the growing trends in § 1782 practice present two legal tensions. First, the contemporary practice of § 1782—compelling the production of evidence to fulfill § 1782 requests from private parties—is inconsistent with the boundaries of the judicial power vested by Article III of the Constitution as it would have been understood at ratification. Second, the contemporary practice of § 1782 does not fulfill the express will of Congress manifest in the statute’s legislative history. This Note suggests a rather simple judicial solution to the growing problem: Judges should presumptively require the consent of the foreign tribunal before granting § 1782 requests.
This Note proceeds in three parts. Part I examines the history of judicial assistance in the United States, starting from the first federal statute on the subject, enacted in 1855, and culminating in the contemporary practice of the current § 1782, enacted in 1964. Section I.A traces two “strands” of laws that were ultimately fused in the current statute—one strand devoted to assisting foreign courts, the other strand devoted to assisting international tribunals. Section I.B discusses the contemporary statute and its practice as governed by Supreme Court precedent and as described by recent empirical research.
Part II analyzes the current practice based on the history of judicial assistance. Section II.A concludes, using Anglo-American legal documents from before and around the time of the Founding, that extending judicial assistance to private parties was not originally practiced as part of the judicial power vested by Article III.
Section II.B then chronicles the passage of the modern § 1782 and concludes that, based on its legislative history, neither Congress nor the statute’s chief drafter intended for § 1782 to provide assistance to private parties. Thus, the history of judicial assistance in the United States is at odds with a growing feature of its contemporary practice.
Finally, Part III proposes a solution to this tension: Courts should presumptively require foreign tribunal consent before granting § 1782 requests. Section III.A explains in detail how judges are to presumptively require tribunal consent for § 1782 requests. Section III.B explains how this proposal in fact resolves the tension described in Part II.