Commercial Litigation and Arbitration

Foreign Government Is Not a “Person” within 28 U.S.C. § 1782 from Whom Discovery May Be Compelled for Use in a Foreign or International Proceeding

Thai-Lao (Thailand) Co. v. Gov’t of the Lao People’s Democratic Rep., 2012 U.S. Dist. LEXIS 37915 (S.D.N.Y. Mar. 19, 2012):

28 U.S.C. § 1782(a) authorizes a federal district court to assist a foreign or international tribunal, or a person interested in a proceeding before such a tribunal, to obtain testimony, documents, or other discovery in aid of the proceeding. The statute provides, in relevant part: "The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal.... The order may be made pursuant to a ... request made by a foreign or international tribunal or upon the application of any interested person ...." 28 U.S.C. § 1782(a) (2012).

A district court is authorized to grant a request made pursuant to the statute when: (1) the person from whom the discovery is sought resides or is found in the district in which the district court is located; (2) the discovery is for use in a foreign or international tribunal; and (3) the request is made by such a tribunal or a person interested in the proceeding. Schmitz v. Bernstein Liebhard & Lifshitz, LLP, 376 F.3d 79, 83 (2d Cir. 2004). A district court has "wide discretion to determine whether to grant discovery and equally wide discretion to tailor such discovery to avoid attendant problems." In re Application of Esses, 101 F.3d 873, 876 (2d Cir. 1996) (per curiam); see also Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 266 (2004) ("§ 1782 authorizes, but does not require, a federal district court to provide judicial assistance to foreign or international tribunals or to 'interested person[s]' in proceedings abroad.") (alteration in original).

In this case, whether the Court may grant Petitioners' motion turns on whether a foreign government is a "person" from whom discovery may be sought under 28 U.S.C. § 1782. Although the Supreme Court has not addressed the issue, its longstanding interpretative presumption that the word "person" in a statute does not include a sovereign, absent affirmative evidence of inclusory intent, is instructive. See Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 1858, 1866-67 (2000). The Supreme Court has identified various ways in which inclusory intent maybe inferred, including "'[t]he purpose, the subject matter, the context, the legislative history, [or] the executive interpretation of the statute ....'" Int'l Primate Prot. League v. Adm's of Tulane Educ. Fund, 500 U.S. 72, 83 (1991).

In Al Fayed v. Cent. Intelligence Agency, 229 F.3d 272 (D.C. Cir. 2000), the District of Columbia Circuit ("the D.C. Circuit") analyzed, as an issue of first impression, whether a foreign government is a "person" within the meaning of 28 U.S.C. § 1782. This Court finds the Al Fayed analysis persuasive and agrees that a foreign government does not constitute a "person" from whom discovery may be sought pursuant to 28 U.S.C. § 1782; see also McKevitt v. Mueller, 689 F. Supp. 2d 661, 668 n.1 (S.D.N.Y. 2010) (Koeltl, J.) ("The Government is not a 'person' under § 1782 and therefore cannot be compelled to provide documents for use in foreign litigation." (citing Al Fayed v. Cent. Intelligence Agency, 229 F.3d 272 (D.C. Cir. 2000))).

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