Using US discovery for proceedings in Asia

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Often, the discovery a party really needs is found in the US. Multinational companies trade with US counterparties. Financial transactions clear through Wall Street. Electronic data traverse servers in Silicon Valley. Parties to US litigation can obtain all of this information to further their cases.

Participants in disputes outside the US can access this information, too. Under a little-known US law, 28 USC, section 1782, parties to “foreign proceedings” can obtain documents and testimony from third parties in the US.

The statute can give an informed party a decisive advantage. Take, for example, the recent dispute in Hong Kong between casino magnate Sheldon Adelson and a reporter from The Wall Street Journal who described him unflatteringly in an article.

Adelson sued the reporter for libel. To defend the suit, the reporter brought section 1782 applications to take discovery from a rabbi whom Adelson had allegedly berated and “reduced to tears”, and from the director of the Brookings Institute, whom Adelson allegedly yelled at for “hosting terrorists” at its events. The Hong Kong libel case settled earlier this year with no payment from either party.

Using Hong Kong as an example, this article explains how parties to disputes outside the US can use the powerful US discovery system, what elements parties must show under section 1782, and practical considerations for executing an effective cross-border discovery plan.

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John Han is a principal and Jason Kang is an associate at Kobre & Kim in Hong Kong