U.S. Style Discovery for Foreign Litigation?


The broad scope of pre-trial discovery in U.S. litigation is frequently criticized by and can be an anathema to foreign litigants; however, occasionally foreign litigants seek just that kind of discovery to further its cause in a foreign, non-U.S., lawsuit. The U.S. Court of Appeals for the First Circuit recently emphasized that there are limitations on such attempts. In re Asta Medica S.A., 25 USPQ2d 1861 (1st Cir. 1992).

A United States federal statute, 28 U.S.C. § 1782(a) (as amended in 1964), does give the U.S. courts the authority, "upon the request made by a foreign or international tribunal or ... any interested person", to order testimony and the production of documents even if solely "for use in [the proceedings before] a foreign or international tribunal." The question is what are the conditions which should be present before such "American-style" discovery would be made available for use in a foreign lawsuit. Basically, U.S. law requires a showing that the discovery sought in the U.S. is only that of the same character as would be the discovery permitted in the foreign proceedings.

Asta Medica arose from a series of related lawsuits pending in Belgium, France, Great Britain and the Netherlands all involving counterparts of the same patent and the foreign defendants in those suits sought to obtain evidence that the invention was in the public domain before the U.S. patent owner, Pfizer, Inc., had applied for the patent. Pfizer opposed the discovery and submitted opinions of foreign law experts that such discovery would not be allowed in the foreign proceedings themselves. The U.S. district court nonetheless allowed the discovery on a broad reading of § 1782(a) and on the belief that it was not the intent of the statute to place any "threshold showing" of what the foreign discovery laws might be. The judge reasoned that such a requirement would impose "a severely onerous burden" on the American courts to first determine the nature of the foreign laws, and, thus, that his ruling was governed solely by his judicial discretion.

Pfizer appealed from this ruling and the discovery was stayed pending the appeal. Last December the First Circuit reversed, holding instead that the purpose of the 1964 act was merely to assist foreign tribunals and litigants within "the requirements of foreign practice and procedure." The court particularly noted that U.S. parties involved in litigation in a foreign country, which country had only limited pre-trial discovery procedures, would otherwise "be placed at a substantial disadvantage [if] the floodgates are [thereby] open for unlimited discovery" while at the same time the foreign litigant would be shielded by the foreign tribunal's limited discovery laws.

Therefore, under such circumstances, U.S. courts are now required to examine and determine the scope of foreign pre-trial practice and procedures. Equally importantly, any similar foreign applicant seeking U.S. discovery under § 1782(a) must first make an adequate showing that the discovery information sought, regardless of its potential importance and relevance to the foreign lawsuit, would itself be discoverable in the foreign country under the foreign procedural law. Otherwise, U.S. discovery rules and proceedings may not be used under 28 U.S.C. § 1782(a) in a U.S. court to obtain evidence for use in foreign lawsuits.