Obtaining Evidence in the US in Aid of Foreign Litigation

International arbitration expert, Jane Wessel, considers the further avenues open to the litigants in their quest for information from Tripadvisor.  

26th January 2015

We reported on 21 January 2015 on a recent Scottish Inner House decision in which the petitioners attempted without success to use section 1(1A) of the Administration of Justice (Scotland) Act 1972 to obtain disclosure of the identity of internet users who had posted allegedly defamatory reviews on the Tripadvisor website. Martin and Jaqui Clark v. Tripadvisor LLCThe Clarks had agreed to the exclusive jurisdiction of the Massachusetts courts when they created their Tripadvisor account, and the Scottish court concluded that this precluded it from making the order that was sought.  We understand that the Clarks are seeking permission to appeal to the Supreme Court.

Should their application be unsuccessful, they will need to consider other avenues to obtain the information from Tripadvisor.  There are two alternative routes available to people seeking information held in the United States in aid of litigation in another jurisdiction. 

The first is the well-known Letters of Request procedure under the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, an international agreement that is in force in both the US and UK.  This involves seeking the information by means of a request from the judicial authorities in the State where the litigation is underway through governmental authorities designated by the State where the information is held.  It is generally available only in circumstances where litigation is already underway, and this may present a difficulty in some circumstances.  For example, it may be difficult for a potential litigant to convince the judicial authorities in its home State to issue letters of request under the Hague Convention in circumstances where the identity of the defendant cannot be ascertained without the information to be requested.

There is a second, less well-known, procedure for obtaining information from the US to be used in non-US litigation.  Section 1782 of Title 28 of the United States Code, entitled “Assistance to foreign and international tribunals and to litigants before such tribunals,” is intended as a vehicle for obtaining assistance from federal courts in the US in gathering evidence from domestic entities and persons for use in foreign and international tribunals.  Section 1782 empowers the district court of the district in which a person resides or is found to order him to provide disclosure for use in a proceeding in a foreign or international tribunal.  An application under Section 1782 may be made either by a foreign or international tribunal or by any interested person. 

Section 1782 has three main advantages over Hague Evidence Convention letters of request.  First, it is available even before litigation has been commenced provided that the information sought will be used in litigation contemplated.  Second, an application under Section 1782 may be initiated by any interested party, and is not dependent upon the cooperation of judicial authorities in the country where the litigation is to be brought.  Finally, the procedure is straightforward and relatively speedy, resulting in the application obtaining the information it seeks without the delays that can occur in Hague Evidence Convention proceedings.

Jane Wessel, a partner in our International Disputes Group in London and a US qualified lawyer, has many years of experience with Section 1782 applications, about which she has written extensively.