World tech center is developing a new industry: discovery in international litigation. Dealing with 28 U.S.C. Section 1782.

By Jim Weixel

California’s Silicon Valley is the hub of the world’s technology industry. Every facet of the hardware and software industries finds its roots in the Bay Area. Lately, however, information management and data storage services have come to the forefront of the tech industry, making it possible for users to operate anywhere in the world while their data – and often the applications that use it – to be based in the “cloud,” accessible from anywhere, rather than residing on a user’s computer.

Like the more traditional areas of the tech industry, cloud computing and data storage find their home in the Bay Area as well. Silicon Valley is home to some of the online storage industry’s largest players. Even a number of domain registrars – the nerve centers of the Internet itself – are located in the Bay Area. A substantial portion of the Internet’s data thus resides in or flows through a server or other storage facility in the Bay Area at some point or another.

With that data, of course, comes a steady stream of parties interested in obtaining it for litigation purposes. Given the truly ubiquitous nature of the Internet, discovery requests can come from literally anywhere. The requests can involve something as weighty as a foreign government seeking to track down the ill-gotten gains of a corrupt ruler, or as mundane as a litigant in a foreign court pressing a defamation claim arising out of an online forum hosted on a local server. Since the Bay Area is the location of many of the world’s hosting and domain registry services, foreign litigants are winding up on our Northern California doorstep more and more in their search for evidence.

Typically, foreign litigants resort to a federal discovery statute, 28 U.S.C. § 1782, to gain access to information located in the United States.  The statute is labeled, “Assistance to Foreign and International Tribunals and to Litigants before such Tribunals.”  That statute allows a party involved in a foreign proceeding to petition a federal court for a subpoena for information or the testimony of witnesses located in the court’s district. As the federal court covering the Bay Area, the U.S. District Court for the Northern District of California sees a constant stream of requests for subpoenas to web hosting services, web-based email services and social networking services.

The statute provides some protection for evidence that is privileged, and also allows the federal court to implement procedures and protections that would be applicable in the courts of the jurisdiction where the proceeding is pending. However, in practice, those discretionary protections are not usually applied by the local courts. Instead, foreign litigants are typically granted a wide degree of latitude in seeking and obtaining information hosted locally, notwithstanding the fact that the laws and procedures of their own courts would not have allowed access to the information.

Whether you’re looking to use 28 U.S.C. § 1782 to get documents for a foreign case, or you’re trying to keep your own information out of the hands of an overseas litigant, it is essential that you retain counsel familiar with the tools available under U.S. and foreign law to protect your interests. As leaders in the Internet litigation and privacy arena, the Internet attorneys at Kronenberger Rosenfeld, LLP are uniquely prepared to provide you with the best possible representation in this arena. The firm has handled these international discovery issues under 28 U.S.C. § 1782 in the past, at both the trial court and appellate level, and we’d be happy to bring that experience to bear for you.

For more information about how Kronenberger Rosenfeld can assist you with 28 U.S.C. § 1782, contact Jim Weixel at jim@KRInternetLaw.com or at (415) 955-1155, extension 119.

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