Transnational Law Archives - Columbia Law Review

Introduction 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.[footnote]United States v. Zubaydah, 142 S. Ct. 959, 963 (2022).[/footnote] In the arbitration case as well, the investor used the statute to compel discovery from its opponent.[footnote]ZF Auto. US, Inc. v. Luxshare, Ltd., 142 S. Ct. 2078, 2083 (2022).[/footnote] 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.[footnote]28 U.S.C. § 1782(a) (2018).[/footnote] The district court can order a person residing or found in the district to produce testimony, a document, or other evidence.[footnote]Id.[/footnote] 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.[footnote]See ZF Auto. , 142 S. Ct. at 2088 (“After all, the animating purpose of § 1782 is comity . . . .”).[/footnote] As discovery requests under § 1782 become increasingly common,[footnote]See generally Yanbai Andrea Wang, Exporting American Discovery, 87 U. Chi. L. Rev. 2089 (2020) (documenting the recent surge in § 1782 discovery requests). Professor Yanbai Andrea Wang found that the number of annual civil requests approximately quadrupled from 2005 to 2017, id. at 2109, 2167 tbl.7, and that there were 3,160 total requests during this time, id. at 2166 tbl.6.[/footnote] 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[footnote]See infra section II.A.[/footnote] and raise questions about how faithfully courts are carrying out Congress’s will.[footnote]See infra section II.B.[/footnote] 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,”[footnote]Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 265 (2004).[/footnote] almost two decades of further experience have taught that practice under § 1782 needs reworking.[footnote]In ZF Automotive , the first § 1782 case decided since 2004, a unanimous Court gave guidelines on whether certain arbitral panels come within the purview of the statute. ZF Auto. , 142 S. Ct. at 2089–91.[/footnote] 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.[footnote]See infra section I.B.3. In this Note, “private parties” are persons, such as corporations or individuals, who are neither courts or tribunals nor officers of courts or tribunals.[/footnote] 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.[footnote]There is concern in the context of domestic disputes that discovery may become a weapon rather than a truth-uncovering tool. See, e.g., Frank H. Easterbrook, Comment, Discovery as Abuse, 69 B.U. L. Rev. 635, 637–38 (1989) (defining abusive discovery requests as those made primarily to impose costs on an adversary rather than to reveal helpful information). This Note’s author learned from conversations with litigators who represent global corporations that lawyers repeatedly encounter § 1782 requests launched by transnational corporations against global competitors. These litigators noted that, often, the primary purpose of these § 1782 requests is to impose costs rather than reveal helpful information. If the discovery request has a real nexus to an existing or potential legal proceeding, the proceeding, much like the discovery request, is typically designed to gain a business advantage rather than to enforce a right or redress a harm.[/footnote] 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.[footnote]The global context of domestic judicial activities is well studied. See Pamela Bookman, Litigation Isolationism, 67 Stan. L. Rev. 1081, 1121, 1135–36 (2015) (noting the negative foreign relations consequences of some judicial avoidance doctrines); William S. Dodge, International Comity in American Law, 115 Colum. L. Rev. 2071, 2132–40 (2015) (discussing certain foreign affairs advantages to judicial management of comity considerations); Maggie Gardner, Parochial Procedure, 69 Stan. L. Rev. 941, 955–57 (2017) (observing a systemic bias toward domestic law and parties). For a discussion of the foreign dimensions of U.S. judicial activity, see generally Stephen Breyer, The Court and the World (2015).[/footnote] 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[footnote]Judicial assistance in the gathering (or taking) of evidence is a general term for the kind of procedure codified at § 1782: When a tribunal seeks evidence that is found in a different jurisdiction wherein the tribunal has no authority to compel the production of the evidence, the tribunal requests the assistance of the local judge that does have the authority to compel the production of the requested evidence. The local judge’s fulfillment of the request is judicial assistance. Throughout this Note, the term “judicial assistance,” unless otherwise clear, is used as a shorthand for this practice. Judicial assistance can also include other interjurisdictional actions, such as extradition, proof or execution of foreign judgments, service of documents in foreign states, and other related items. See Harvard Rsch. in Int’l L., Draft Convention on Judicial Assistance, 33 Am. J. Int’l L. (Supp.) 15, 26 (1939).[/footnote] and § 1782 specifically[footnote]The history of judicial assistance in the United States since 1855 has been helpfully sketched in several sources. See, e.g., Brief for the United States as Amicus Curiae Supporting Affirmance at 3–7, Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) (No. 02-572), 2004 WL 214306 [hereinafter Intel Brief]; Helena Tavares Erickson, Barry H. Garfinkel, Karl Geercken, Timothy G. Nelson, James M. Rhodes, Vincent J. Vitkowsky & David Zaslowsky, Comm. on Int’l Com. Disps., N.Y.C. Bar, 28 U.S.C. § 1782 as a Means of Obtaining Discovery in Aid of International Commercial Arbitration—Applicability and Best Practices 2–13 (2008), https://www.nycbar.org/pdf/report/1782_Report.pdf [https://perma.cc/Y49C-9J3P] [hereinafter N.Y.C. Bar Report]; Harry LeRoy Jones , International Judicial Assistance: Procedural Chaos and a Program for Reform , 62 Yale L.J. 515, 540 (1953); Robert H. Smit, Tyler B. Robinson & Lauren W. Brazier, The History of 28 U.S.C. § 1782, in Obtaining Evidence for Use in International Tribunals Under 28 U.S.C. Section 1782, at 1-1, 1-1 to -20 (Edward M. Mullins & Lawrence W. Newman eds., 2020). These works do not, however, examine the history of § 1782 that antedates U.S. statutory codifications of judicial assistance.[/footnote] 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.[footnote]There are academic discussions about the constitutional issues relating to § 1782. See, e.g., David J. Gerber, Obscured Visions: Policy, Power, and Discretion in Transnational Discovery, 23 Vand. J. Transnat’l L. 993, 1007 (1991) (arguing that there is a potential violation of separation of powers when judges have too much discretion around transnational discovery); James E. Pfander & Daniel D. Birk, Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction, 124 Yale L.J. 1346, 1390–91 (2015) (discussing Article III issues with judicial assistance’s often ex parte nature); Wang, supra note 6, at 2142–45 (discussing due process concerns posed by § 1782’s lack of parity and notification requirements). This Note examines whether § 1782 is within the confines of the judicial power vested in federal courts by Article III as historically practiced.[/footnote] 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.