The Government’s Amicus Brief In POSCO

I noted the Federal Circuit’s curiosity about § 1782 in In re POSCO, a mandamus case in which the court, sua sponte, asked the parties and then the government to brief the question whether § 1782 is the exclusive means to obtain evidence for use in a foreign proceeding.

The government has now filed its amicus brief, which, I’m happy to say, comes to the same overall conclusion I reached: § 1782 is not the exclusive means for obtaining evidence for use in foreign proceedings. The brief, written by the excellent team in the Office of International Judicial Assistance and the Office of Foreign Litigation at DOJ, correctly distinguishes modification of a protective order from an application under § 1782: “[A] court considering whether to issue or modify a protective order is not ordering the production of material for use in a foreign proceeding but defining, where good cause is presented, what the recipient may do with the materials produced in a domestic proceeding.” The brief also makes a very simple but highly persuasive point. Section 1782 expressly provides what is generally true in American law: people in the United States can voluntarily give evidence for any purpose—for use here or for use abroad. As a matter of US practice, when the US central authority receives a letter of request under the Hague Evidence Convention, it first seeks to obtain the evidence voluntarily, and only then brings an application under § 1782. The same is true for traditional letters rogatory. These practices show that Section 1782 is not the exclusive means for obtaining evidence, and it would be very odd to say that the US central authority should have to bring a 1782 proceeding when the witness in the United States is willing to provide the evidence voluntarily.

The Federal Circuit’s questions really came out of left field. I hope that the government’s brief will put the issue to bed.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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