District Court's Order Details 28 USC § 1782 Requirements for Granting Ex Parte Petition for Discovery of Documents in Foreign Proceeding

The U.S. District Court for the Southern District of New York granted an ex parte petition under 28 U.S.C. § 1782(a) for the discovery of documents held by Aimbridge Hospitality, Norton Rose Fulbright, and White & Case for use in a proceeding in the British Virgin Islands. In so doing, the court noted that such ex parte petitions are "routinely grant[ed]."

A district court has the authority to grant a section 1782 petition where:

1. The person from whom discovery is sought resides or is found in the district of the district court to which the application is made;
2. The discovery is for use in a foreign proceeding before a foreign or international tribunal; and;
3. The application is made by a foreign or international tribunal or any interested person.

The court also described the following discretionary factors that the court may consider:

1. Whether the person from whom discovery is sought is a participant in the foreign proceeding, in which case the need for section 1782(a) aid generally is not as apparent;
2. The nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign court or agency abroad to U.S. federal court judicial assistance;
3. Whether the section 1782(a) request conceals an attempt to circumvent foreign proof-gathering restrictions; and
4. Whether the request is unduly intrusive or burdensome.

The petition, supported by declarations and memoranda of law, satisfied the required section 1782 criteria, where the petitioner averred that the respondents all resided in or were found in the Southern District, and the documents would be used to “strengthen [the petitioner’s] position” in ongoing litigation in the British Virgin Islands, which the petitioner had initiated, making it an “interested party.” In addition, each of the discretionary factors, including the fact that courts in the Southern District “routinely grant § 1782 applications for discovery for use in the BVI,” also weighed in favor of granting the petition.

In re Application of Tethyan Copper Co. Pty. Ltd., No. 1:21-mc-00377 (S.D.N.Y. Apr. 28, 2022).