Advice on 28 U.S.C. § 1782(a) discovery applications
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28 U.S.C. § 1782(a) made easy
Given the global nature of the internet, there is a constant need for various court orders to be domesticated in foreign jurisdictions. Many social media companies, domain name registrars, servers and gaming platforms are located in the US. This makes obtaining disclosure by a non-US individual from those platforms a challenging task even for experienced lawyers.
To obtain disclosure, or a discovery, from a US court, you will need to first file a claim in your local court. You will not be required to ask your local court for a discovery order or for a disclosure order. All that is needed is to file a claim or to begin a court case in your local court. 28 U.S.C. § 1782(a) is a provision in the United States Code that allows a person or entity to request judicial assistance in obtaining evidence for use in a foreign or international legal proceeding. Specifically, the provision allows a district court to order a person who resides or is found in the district to give testimony or produce documents for use in a proceeding before a foreign or international tribunal, including criminal investigations and civil lawsuits.
To obtain such an order, the applicant must meet certain requirements, such as showing that the evidence is for use in a foreign or international proceeding and that the person or entity from whom the evidence is sought is in possession of the evidence. Additionally, the district court has discretion to grant or deny the application based on various factors, such as the relevance of the evidence and the potential burden on the person or entity from whom the evidence is sought.
Overall, 28 U.S.C. § 1782(a) is an important tool for parties involved in foreign or international legal proceedings to obtain evidence located in the United States that they may not be able to obtain otherwise. If you are seeking to obtain disclosure from the US under 28 U.S.C. § 1782(a), here are the steps you should take:
- Determine if you are eligible: To qualify for relief under 28 U.S.C. § 1782(a), you must be a "foreign or international tribunal," or a "foreign or international tribunal or any interested person" involved in a foreign or international legal proceeding. Broadly speaking, if you are a litigant in a foreign jurisdiction, you will automatically satisfy this requirement. You will need to file a claim in your local court and identity who the claim is against. If you don't know yet who the defendant is, you may file a claim against “persons unknown”. Make sure you pay the appropriate court fee and have your claim stamped by the court as a matter of a minimum requirement
- Identify the appropriate US court: Once you have determined that you are eligible, you will need to identify the appropriate US court to file your application. The statute provides that an application may be made to "the district court of the district in which a person resides or is found" or "the district court in which a subpoena may be served." You should consult with our lawyers before filing the application in the US. Jurisdictional issues are complex and having your application fail could have serious adverse consequences for your case. It could cause a delay to your case, it could cause your application to be completely rejected, it could increase your legal costs and it could cause you serious reputational damage, particularly if your case has reputational aspects to it. Our lawyers are highly experienced with 28 U.S.C. § 1782(a) matters. We have local attorneys in nearly every jurisdiction in the US who will help resolve any doubt over jurisdictional matters.
- Prepare and file your application: Your application must be in writing and must include a statement of the nature of the foreign proceeding, the relevant issues and evidence, and the names and addresses of the persons from whom discovery is sought. You will also need to submit any documents that are relevant to your application. When the statute refers to “persons” it also covers companies.
- Serve your application: Once you have filed your application, you will need to serve it on all relevant parties, including the individuals or entities from whom you are seeking discovery. Service must be property affected. In many cases, you will need to serve by a process server to ensure that the application was served property. In some cases, particularly in relation to social media companies and domain registrars, we will be able to receive dispensation from the relevant legal team and have the application served by email. This will speed matters up, will save you in legal costs and will ensure that the application was appropriately served and received
- Attend the hearing: After you have filed your application and served it to all relevant parties, the court will hold a hearing to consider your request. You will need to attend the hearing and present evidence to support your request. However, in many cases, we are able to have those hearings conducted on paper which means that the attendance of our lawyers isn't required. This, again, is likely to save you legal costs and speed up matters. If there are any issues with the application under 28 U.S.C. § 1782(a), the court will require a hearing so it is important to make sure that the application is drafted and prepared in the best possible way by an experienced lawyer. Furthermore, our attorneys are known to their local courts and often are able to resolve preliminary issues with the court clerk and pre-empt the need for a hearing in person. If the court grants your request, it will issue an order compelling the production of the requested evidence. If the court denies your request, you may appeal the decision to a higher court.
There are alternatives to making a discovery application under 28 U.S.C. § 1782(a). In the context of the internet, there are many situations where lawyers from the UK or from another jurisdiction will need to have a local court order domesticated in the US. Domesticating a court order would allow you to obtain discovery from a company that is located in the US without having to file a claim or start legal proceedings in the US
Domesticating a court order means that you need to first obtain the order from your local court and have permission to serve it outside of the jurisdiction. Each state has its own domestication process which has to be followed thoroughly and correctly. Domestication a court order in the US is covered elsewhere on this website and our lawyers will be happy to advise you on this option before you make a decision about starting legal proceedings.
Making an application under 28 U.S.C. § 1782(a) or having a local court order domesticated in the US might not be the only way a foreigner can obtain disclosure from a US company. There is also a third alternative, which often works well where you may begin the entire legal proceedings in the US court, whether in a US state court or in a federal court.
You will, of course, need to be able to justify your choice of jurisdiction. This option might be suitable in cases where you want a US-based domain name registrar to provide you with otherwise confidential or secure information about the owner of a specific domain name in relation to defamation that is posted on a website which uses a domain name which had been purchased from the US registrar. The defamation will need to be by an unknown person who could possibly be a citizen of the US.
The topic of filing a claim in the US to obtain disclosure is covered elsewhere on this website and can be discussed with you in more detail before you begin your commence legal proceedings. You will need to be careful not to jeopardise your legal case and to ensure that you avoid commencing legal proceedings in two jurisdictions at the same time. Make sure to take legal advice before starting your case.
The costs of each 28 U.S.C. § 1782(a) application would depend on various factors, such as the nature of the litigation, the amount of evidence, the urgency of the matter and the US jurisdiction through which the disclosure is being sought. Our firm’s average rates are far less than most law firms that regularly carry out this type of work.
Our team's experience in handling internet-related cross-border disputes has enabled us to identify the most efficient and effective means of obtaining evidence through 28 U.S.C. § 1782(a). This factor is crucial when balancing the potential benefits of obtaining evidence against the costs that may be incurred.
Our approach involves carefully analysing the case to identify the key pieces of evidence that will be most impactful in the arbitration or litigation proceeding. We then work with our own trusted network of attorneys from all the over the US who are familiar with their local courts and who often work under the ambarella of our law firm.
The costs of each 28 U.S.C. § 1782(a) application would depend on various factors, such as the nature of the litigation, the amount of evidence, the urgency of the matter and the US jurisdiction through which the disclosure is being sought. Our firm’s average charges rates are far less than most law firms that regularly carry out this type of work.