February 2021
IP Law Daily
By Lionel M. Lavenue; R. Benjamin Cassady; Joseph M. Myles
Under 28 U.S.C. § 1782, parties with an interest in an actual or anticipated foreign litigation can seek discovery for that foreign litigation from entities who reside or are “found” in the United States. Thus, for example, a party to a foreign litigation can obtain discovery in the United States from its adversary’s United States subsidiary or any other entity that is “found” here, making § 1782 a very valuable too. Indeed, as opposed to foreign jurisdictions where discovery is limited or effectively nonexistent, a U.S. resident subject to § 1782 discovery could be compelled to comply with full scope of discovery allowable under the Federal Rules. Cf. Crocs, Inc. v. Cheng's Enterprises, Inc., Case No. 1-06-cv-00605 (D. Colo. Jan. 11, 2021) (Order) (“In a colossal waste of attorney time and judicial resources, Dawgs refuses to produce a copy of the Settlement Agreement entered into between itself and George Boedecker, a cofounder of Crocs, even though all parties agree the document is relevant and material.”). Accordingly, what it means to be “found” in a jurisdiction is a key question for obtaining information from foreign adversaries.
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Originally printed in IP Law Daily in February 2021. This article is for informational purposes, is not intended to constitute legal advice, and may be considered advertising under applicable state laws. This article is only the opinion of the authors and is not attributable to Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, or the firm’s clients.
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