Lori Marks-Esterman Publishes Article in Attorney At Law Magazine on Section 1782 as a Little-Known Superpower Used in U.S. Courts to Help Win Foreign Litigations

Olshan Chair of Litigation Lori Marks-Esterman authored an article in Attorney at Law Magazine entitled “Section 1782: The Little-Known Superpower Used in U.S. Courts to Help Win Foreign Litigations.” In the article, Lori outlines how Section 1782 can be a powerful tool in foreign litigation. The statute allows U.S. district courts to compel a person or entity “found” in the U.S. to produce discovery in connection with a foreign proceeding. However, as Lori points out, the statute and applicable caselaw contain plenty of hurdles and some limitations to the court’s power, including three statutory prerequisites and four discretionary factors. "Among the three statutory factors, the 'for use' requirement is most frequently challenged by discovery targets in the United States," Lori writes. "Targets frequently argue that the discovery is not 'for use' in the foreign proceeding if the petitioner cannot demonstrate specifically how the evidence will be used in the foreign proceeding, or that the evidence will be admissible in the foreign court." Despite the challenges in seeking discovery via Section 1782, foreign litigants can overcome the lengthy requirements with careful consideration of how to meet the Section 1782 requirements.  In the article, Lori reviews the potential pitfalls applicants often get tripped up on, and how to avoid them.