US discovery is a bone of contention between Germany and the United States. If you run a search for Justizkonflikt in a German legal data base, you will find hundreds of entries dealing with conflicts between the US and the German judicial systems – going back to Peter Schlosser’s 1985 publication which, if it not coined the phrase Justizkonflikt, certainly popularized it. If you look closer, you will find German authors and courts almost exclusively thinking about ways and means to protect German parties against US style discovery or US punitive damages awards. The fact that, on the other hand, US law is quite liberal in making US discovery available in support of foreign proceedings under 28 USC Sec. 1782 became more widely known only in the wake of the US Supreme Court’s 2004 decision in Intel Corp. v. Advanced Micro Devices, Inc.
The more often applications under Sec. 1782 are made, the more case law they generate. Most of the US court decisions appear to be supporting the foreign applications. A recent example confirming this liberal approach the judgment of the U.S. Court of Appeals for the Second Circuit, in the matter Anselm Brandi-Dohrn v. IKB Deutsche Industriebank.
The Court held that US judges, in dealing with such an application, should not try to second-guess whether that foreign court is likely to to admit the evidence obtained in the US if it is introduced into the foreign proceedings.
The German applicant had sought assistance from the US District Court to order discovery from three non-parties for use in a securities fraud action filed in Germany. The District Court did not grant the requested assistance, ruling that the requested discovery could not be “for use” in the German tribunal because it was unlikely to be admitted in Germany. In opposing the application, it had been argued that under German law, the evidence would have been submitted too late, since the matter was already pending at the appeal stage when the applications were made in the US.
The Court of Appeals was not persuaded and reversed the District Court’s order because it conclude that the “for use” requirement is not limited to the actual receipt of materials into evidence in the foreign proceeding. The court held that 28 USC Sec.1782(a) does contain no requirement that particular evidence be admissible in a foreign proceeding to be considered “for use in a proceeding in a foreign or international tribunal.”
Ted Folkman at Letters Blogatory discusses the case in more detail, and Larry Schaner and Brian Scarbrough of Jenner & Block provide an overview of 28 USC Sec. 1782 applied to German requests, published in the April 2012 issue of Anwaltsblatt. It includes a particularly helpful annex covering all reported US cases dealing with German discovery requests.