Emory Larkin

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As the 2020 election draws near, the United States' divide on matters of foreign relations is more polarized than it has been in decades. Therefore, case law interpreting statutes such as 28 U.S.C. § 1782— which provides an avenue to aid litigation in foreign countries—is increasingly relevant in today's society. Section 1782 proceedings do not usually make the front page of the news, and most attorneys can practice their entire career without ever coming across the statute at all, nevertheless, Section 1782 is an important part of foreign litigation and international relations and has been for over 150 years.

Section 1782 proceedings have become more relevant throughout the United States, and at this point, every circuit, and most district courts have dealt with numerous cases invoking a Section 1782 application. The statute allows parties of foreign litigation to file an application requesting the help of the United States in providing domestic discovery materials to litigation happening outside of the United States. In doing so, Congress hoped to provide an efficient avenue to aid foreign litigants as well as show other countries that the United States cooperates with foreign proceedings with the hope that other countries will do the same.

Section 1782 has statutory requirements that an applicant must meet in order for their application for discovery aid to be granted. The power to grant or deny the application has been given to the district courts. In addition to the statutory requirements, the courts have developed discretionary factors to consider in light of the statute's purpose. Through the decision of Intel Corporation v. Advanced Micro Devices, Inc., the Supreme Court of the United States expressly stated the factors that must be considered and while presumably helpful, it also opened the door to critical questions.

This year, in 2019, the case of Dep't of Caldas v. Diageo PLC presented two of such issues to the United States Court of Appeals for the Eleventh Circuit as a matter of first impression. The issue of who bears the burden of proof as to the discretionary factors is one of these questions, and while other circuit courts have ruled on this issue, the Eleventh Circuit has not. The Eleventh Circuit also decided an issue of first impression, for not only this circuit but the other circuits as well, when it held that granting a partial Section 1782 application is allowed even when an applicant filed jointly with other applicants who may not meet the statutory requirements.

In deciding these issues of first impression in Dep't of Caldas, the court used a rational and balanced approach and ultimately set the stage for a common-sense interpretation of the goals of 28 U.S.C. § 1782.