The applicant sought to require documents and deposition testimony from an individual located in, and a corporation headquartered in, New York for use in an international arbitration initiated against the Republic of Lithuania arising out of Lithuania’s nationalization of a bank. The court found all three statutory requirements of the application were met, which provided the court with the authority under 28 U.S.C. § 1782 to order the discovery sought by the applicant: (1) the individual and corporation are located in New York; (2) the discovery is for use in an international arbitration; and (3) the application is made by the complaining party – and thus an “interested party” in the arbitration.
As to the court’s discretion, looking at the factors set forth in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), the court found the factors weighed in favor of granting the application: (1) the individual and corporation were not participants in the international arbitration; (2) there is no reason to doubt that the foreign tribunal would be receptive to U.S. federal-court judicial assistance because, while the tribunal did not address the question of admissibility of evidence obtained by the applicant, it did not preclude the applicant from pursuing this proceeding; (3) granting the applicant’s request would not allow it to circumvent foreign proof-gathering restrictions or other policies, as the discovery is to be used in an international proceeding, with its own rules governing discovery and admissibility of evidence; and (4) the applicant’s request is not unduly intrusive or burdensome, as its requests “go to the heart of their case in the arbitration, and appear to be proportionate to their needs.” The individual and corporation were free to apply to the court for a protective order or for other relief as necessary to appropriately limit discovery consistent with federal law. The court permitted the applicant to issue subpoenas for documents in substantially the same form as those filed in support of its application.
In re Application of the Fund for Protection of Investor Rights in Foreign States pursuant to 28 U.S.C. § 1782 for an Order Granting Leave to Obtain Discovery for Use in a Foreign Proceeding, No. 1:19-mc-00401 (S.D.N.Y. July 8, 2020).