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Legal Tech: Will the U.S. Become a Haven for International Discovery Under Section 1782?

Second and Eleventh Circuit rulings are likely to expand refuge to discovery in the U.S., even for international litigation and arbitrations that don’t ordinarily include discovery rights.

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28 U.S. Code Section 1782(A) provides that an individual or entity that resides or is found in a jurisdiction may be ordered to produce documents or give testimony for disputes before foreign or international tribunals, so long as that person or entity is in possession or control of relevant evidence. U.S. courts are split on what is required to show “control” of documents, but generally apply either the “legal right standard” or the “practical ability standard.” Under the legal right standard, a party is deemed to have control over documents possessed by others only if the party has the legal right to obtain them. The practical ability standard is broader, expanding the definition of control to include instances where a party has the practical ability to obtain the documents sought, regardless of that party’s legal right to the documents.

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