A Word to the Worldwide: Is the Global Law Firm’s US Office the New ‘Discovery Central’?

January 27, 2022

Suppose Ivan and Dmitri are litigating a contract dispute in a Russian court. Fred, a US resident, has a relevant email. 28 USC Section 1782(a) exposes him to discovery in aid of the Russian proceeding. A federal court may grant the application of Ivan (or Dmitri or the Russian court) to seek discovery of Fred’s email from Fred. Now suppose that instead of Fred, Biglaw LLP has the memorandum. Because Biglaw has a New York office, it may be subject to an order here for production.

So far, so unsurprising. But now suppose the email is itself abroad. Just a couple of months ago, another federal court joined the consensus that the statute reaches that too.

This trend was foreseen—and lamented. “Section 1782 should not be used to interfere with the regular court processes in another country,” scholar Hans Smit warned decades ago. “[I]f Section 1782 could be used for this purpose, American courts would become clearing houses for requests for information from courts and litigants all over the world in search of evidence to be obtained all over the world.” (American Assistance to Litigation in Foreign and International Tribunals: Section 1782 of Title 28 of the U.S.C. Revisited, 25 SYRACUSE J. INT'L L. & COM. 1, 11 (1998))

The professor was prescient. In 2019, a court observed that the statute can be used to require a US-centered firm with an international presence to produce relevant materials from a foreign office. In Re: Application of Hulley Enterprises Ltd. et al., no. 1:18-mc-00435, slip op. (S.D.N.Y. 2019). (The case involved White & Case. The court declined the application as a discretionary matter, concluding that to order production would raise in appropriate tension with the law of the foreign jurisdiction—Russia—where the records resided.)

In November, another court went further, in Ex Parte Application of Iraq, no. 19-175 (E.D.Pa. Nov. 5, 2021). Judge R. Barclay Surrick ordered Dechert’s US office to produce emails that the law firm argued were client-privileged. The emails involved firm professionals in the United Kingdom and were generated there while representing Iraqi nationals in an archetypically local matter: the acquisition of UK real estate. Both Dechert and plaintiff’s counsel are law firms whose global footprint is centered in the United States. Apart from the fact that a computer terminal in Philadelphia could presumably contact a server (location unspecified) and access the email, it is hard to see any US contact. Why UK courts were not the obvious (and only?) locus for this discovery dispute was not discussed.

The opinion mainly addresses the privilege claim, applying US privilege law to resolve the dispute. It breaks no new ground in the domestic law of privilege but it does serve notice—particularly on the global law firm—that Professor Smit was onto something. Cross-border disputes abound. Section 1782 has become a familiar tool in the foreign litigant’s toolbox, even where the witnesses and documents are themselves abroad. And what more fertile resource than the global firm with a US office?