December 2, 2014 - Michael S. Finkelstein
Federal law permits foreign litigants to obtain access to evidence located within the United States with help from local counsel and by way of an application under 28 U.S.C. § 1782 so long as the information sought is “reasonably calculated to lead to admissible evidence” as is required by Rule 26 of the Federal Rule of Civil Procedure. Case law indicates that the statute authorizes U.S. Courts to hear the application and provide assistance to the foreign tribunal if that foreign court could order production of the evidence. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004).
The Federal Rules of Civil Procedure govern the underlying discovery requests if the District Court grants the Section 1782 application, See, e.g., Texas Keystone, Inc. v. Prime Natural Resources, Inc., 694 F.3d 548, 553-54 (5th Cir. 2012), meaning that evidentiary privileges recognized under the Rules will remain intact, Ecuadorian Plaintiffs v. Chevron Corp., 619 F.3d 373 (5th Cir. 2010).