Section 1782 Discovery - The Intel Decision

The Intel Decision

For many years, district courts and appellate courts disagreed as to (a) the scope of permitted discovery (evidence-taking) under Section 1782, (b) who may request section 1782 discovery, (c) at what stage of a non-US proceeding a section 1782 order may be granted, (d) the meaning of the statute's term "tribunal," and (d) whether an applicant under section 1782 needs to show that the requested evidence would be "discoverable" in the foreign jurisdiction.

The case law concerning Section 1782 was largely clarified in 2004, when the Supreme Court of the United States issued its decision in Intel Corp. v. Advanced Micro Devices, Inc. Intel held that (a) section 1782 discovery may be sought by any "interested person," (b) such discovery may sometimes be sought even prior to the initiation of formal proceedings outside the United States, and (c) a "tribunal" within the meaning of the section is any tribunal that acts as a "first instance decisionmaker." The Court also largely did away with any requirement of "discoverability" before the non-US tribunal.

In essence, Intel held that section 1782 discovery is available to a non-US litigant almost as freely as discovery is available in connection with a law suit that is pending entirely before a court in the United States.

Section 1782 has received great attention in recent years, following Intel.