A dispute or investigation is running in India, and the evidence is in the US: a US company, a bank account, an executive who has moved there, or records held on a US server. Parties to an Indian matter often assume that evidence is out of reach. However, Section 1782 of Title 28 of the United States Code (28 U.S.C. § 1782) lets a US federal court order a person who resides or is found in its district to give testimony or produce documents for use in a proceeding before a foreign tribunal.
The foreign proceeding need not have been filed yet, as long as it is within reasonable contemplation. Since ZF Automotive US, Inc. v. Luxshare, Ltd., 596 U.S. 619 (2022), Section 1782 does not reach private commercial arbitration, so an arbitration between two private parties under the SIAC or ICC rules will not qualify. Proceedings in the Indian courts qualify, and so can proceedings before Indian government and regulatory bodies.
Even where the statute is met, the court has discretion. It applies the four factors set out in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004): whether the person asked for evidence is a party to the foreign proceeding, how receptive the foreign tribunal is to US help, whether the request is an attempt to get around foreign limits on gathering evidence, and whether it is unduly burdensome. An application that deals with these factors at the outset stands a better chance of being granted and of surviving a motion to quash.
I assess whether the matter qualifies, identify the district and the person to be reached, and prepare the application. It is filed through counsel admitted in that district, whom I instruct and work with throughout.
An engagement can cover:
Where the matter is a private commercial arbitration, which Section 1782 does not reach, I advise on what is available instead. If the evidence you need is in the US, do reach out and I will take a look.