Non-U.S. litigants under American law were previously unable to petition U.S. courts using Title 28 of the U.S. Code, Section 1782 to pursue assets to satisfy a foreign judgment. Previously, non-U.S. litigants could only utilize Section 1782 to obtain discovery to assist adjudication of proceedings before a foreign tribunal.
Now, in an amended Feb. 24 decision — in the case of the Federal Republic of Nigeria v. VR Advisory Services Ltd. – the U.S. Court of Appeals for the Second Circuit signaled increased openness to Section 1782 petitions seeking evidence for use in post-judgment, non-U.S. proceedings. Though still not crystal clear, this
1782 will likely end up before the U.S. Supreme Court, which is presently considering whether 1782 discovery procedures can apply to foreign arbitral (as opposed to exclusively judicial) proceedings. The 2nd, 5th, and 7th Circuit Courts of Appeal narrowly interpret the statute holding that it only permits a U.S. court to order discovery in connection with foreign proceedings that involve some form of “governmental” or “quasi-governmental” authority.
Conversely, the 4th and 6th Circuits hold that section 1782 discovery is available in all foreign and international arbitrations, including private proceedings before arbitrators selected by the parties. For now, however, it appears that litigants who want to use 1782 to pursue more post-judgment asset collection discovery may have the right to do so.