Yes. In the United States, federal law (i.e., 28 U.S.C. § 1782) provides that a foreign or international tribunal or any interested person may directly apply for an order from a federal district court to compel testimony, document production, or other evidence production for use in a proceeding before a foreign or international tribunal. If the foreign jurisdiction requires that the evidence presented be taken under a letter rogatory, another federal law (i.e., 28 U.S.C. § 1781) permits the U.S. Department of State to receive letters rogatory and the Office of International Judicial Assistance (with the U.S. Department of Justice) may receive letters of request under the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”).

Some states also have state-specific laws that may aid persons seeking to obtain evidence in a particular state, such as by enabling the person to serve or domesticate a foreign subpoena in the state.

The United States is a signatory to the Hague Evidence Convention. To obtain evidence from a person in aid of foreign litigation without a letter rogatory, an applicant may proceed under 28 U.S.C. § 1782 and meet several requirements (i.e, (1) the application must be made in the federal district court in the district where the person from whom evidence is sought resides or is found; (2) the evidence sought must be for use in a proceeding in a foreign or international tribunal, which includes criminal investigations conducted before formal accusation; and (3) the application must be made by a foreign or international tribunal or an interested person). The term “interested person” includes not only parties to the foreign proceedings but also persons possessing a “reasonable interest” in obtaining judicial assistance. See Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 256–57 (2004). Section 1782(a) also provides that an order compelling testimony or other evidence production may be made pursuant to a letter rogatory issued.

The United States has also designated the International Judicial Assistance (with the U.S. Department of Justice) to receive letters of request under the Hague Evidence Convention. In addition, 28 U.S.C. § 1781 authorizes the U.S. Department of State to receive letters rogatory.

State law varies by jurisdiction. For example, in New York, state courts are authorized to recognize “any mandate, writ or commission issued out of any court of record in any other state, territory, district or foreign jurisdiction” that requires the testimony of a witness in New York. See N.Y. C.P.L.R. § 3102(e).

California law provides two ways by which a person may “domesticate” a foreign subpoena to compel testimony or other discovery production in the state. Under the first option, a person may submit an application for a subpoena along with a copy of the foreign subpoena to the clerk of the superior court in the county in which discovery is sought to be conducted. The clerk will then issue a subpoena that may be served on the person from whom discovery is sought. See Cal. Civ. Proc. Code § 2029.300. Under the second option, a person may retain a California attorney, give the attorney the foreign subpoena, and the attorney may issue a subpoena without the need to apply to the clerk of court. See Cal. Civ. Proc. Code § 2029.350.

Texas law allows for a similar approach. By statute, “if a court of record in any other state or foreign jurisdiction issues a mandate, writ, or commission that requires a witness’s testimony in this state,” the witness may be compelled to produce evidence “in the same manner and by the same process used for taking testimony in a proceeding pending in this state.” Tex. Civ. Prac. & Rem. § 20.002.

Under Florida law, a subpoena issued under the authority of a foreign court may be submitted to the clerk of court in the county in which discovery is sought, and the clerk will then issue a subpoena that may be served on the person from whom discovery is sought. See Fla. Stat. § 92.251.

To proceed under 28 U.S.C. § 1782, the application must be made in the federal district court in the district where the person from whom evidence is sought resides or is found. The United States Supreme Court has observed that the statute “authorizes, but does not require” a district court to provide judicial assistance. See Intel Corp., 542 U.S. at 247. Therefore, district courts have relatively broad discretion to fashion a discovery order or to deny a request under the statute.

As noted above, the U.S. Department of State handles letters rogatory under 28 U.S.C. § 1781, and the International Judicial Assistance (with the U.S. Department of Justice) handles letters of request under the Hague Evidence Convention.

State law varies. For example, if proceeding under New York state law, an applicant must obtain a court order from the New York supreme court (or, in certain instances, the county court). If proceeding under California state law, an applicant has the choice of either applying to a superior court clerk of court or retaining a California attorney to issue the subpoena.

Although Texas law appears to permit a subpoena to be issued by either a clerk of court, a Texas attorney, or an officer authorized to take depositions in Texas, issues can arise when domesticating a foreign subpoena. Therefore, it may be advisable to commence a civil action in Texas to request a subpoena, even if not expressly required by Texas law. If proceeding under Florida law, an applicant must apply to the clerk of court.

28 U.S.C. § 1782(a) is broad in terms of the types of information that may be sought, referring to testimony, statements, as well as production of documents or “other thing[s].”

State law again varies, but many will allow the broadest type of information. New York allows an applicant to obtain most types of information. See Kirdland & Ellis v. Chadbourne & Parke LLP, 670 N.Y.S.2d 753, 756 (N.Y. Sup. Ct. 1998). California, Texas, and Florida vary, depending on what is requested in the foreign subpoena.

Under 28 U.S.C. § 1782(a), “[a] person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.” The statute also provides that the Federal Rules of Civil Procedure govern to the extent the court’s order does not provide otherwise. Accordingly, the statute does not appear to modify the rules of privilege (including who bears the burden regarding such privilege), which may vary depending on the particular privilege at issue and whether such privilege arises under federal or state law.

28 U.S.C. § 1782 does not require that the information sought must be discoverable under the law governing the foreign proceeding. See Intel Corp., 542 U.S. at 247.

If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom, etc.)

Many jurisdictions in the United States now permit remote depositions, such as by videoconference or Zoom. Consult with counsel regarding the rules specific to a particular district court or other jurisdiction within the United States.

In New York, a deposition may be conducted remotely if the parties stipulate to such an arrangement. See N.Y. C.P.L.R. § 3113(d).

In California, remote depositions are allowed “[a] t the election of the deponent or the deposing party.” Cal. Civ. Proc. Code § 2025.310(a).

In Texas, “[a] party may take an oral deposition by telephone or other remote electronic means if the party gives reasonable prior written notice of intent to do so.” Tex. R. Civ. P. 199.1(b).

Florida law does not expressly authorize remote depositions. However, the Florida Supreme Court has permitted remote depositions on a temporary basis due to the COVID-19 pandemic.

A federal district court is not required to grant a discovery application made pursuant to 28 U.S.C. § 1782. Instead, the decision of whether to allow the application lies within the court’s discretion. Courts will consider factors including: (1) whether the evidence sought can be obtained under the foreign tribunal's jurisdictional without the assistance of a federal district court; (2) the nature of the foreign tribunal, the character of the foreign proceedings, and the receptivity of the foreign government, court, or agency to U.S. federal court assistance; (3) whether the application conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States; and (4) whether the application contains unduly intrusive or burdensome demands. See Intel Corp., 542 U.S. at 264–65.

The United States does not prevent people or entities from voluntarily providing evidence in a foreign proceeding. In fact, 28 U.S.C. § 1782(b) explicitly provides that these statutes are not intended to “preclude a person within the United States from voluntarily giving his testimony or statement, or producing a document or other thing, for use in a proceeding in a foreign or international tribunal before any person and in any manner acceptable to him.”

It is currently unclear whether and to what extent 28 U.S.C. § 1782 covers foreign arbitration proceedings, and U.S. courts are split on the issue. For example, the U.S. Courts of Appeals for the Second, Fifth, and Seventh Circuits have held that section 1782 does not apply to private foreign arbitrations. See In re Guo, 965 F.3d 96, 100 (2d Cir. 2020); Republic of Kazakhstan v. Biedermann Int’l, 168 F.3d 880, 881 (5th Cir. 1999); Servotronics, Inc. v. Rolls-Royce PLC, 975 F.3d 689, 690 (7th Cir. 2020).

In contrast, the Fourth and Sixth Circuits have held that section 1782 may be applicable to private foreign arbitrations. See Servotronics, Inc. v. Boeing Co., 954 F.3d 209, 210 (4th Cir. 2020); In re Application to Obtain Discovery for Use in Foreign Proceedings, 939 F.3d 710, 714 (6th Cir. 2019). The U.S. Supreme Court recently agreed to take up this question and review the Seventh Circuit’s decision in Servotronics, Inc. v. Rolls-Royce PLC, but the parties subsequently agreed to dismiss the case, rendering the appeal moot and leaving the ultimate resolution of this question for another day. See Servotronics, Inc. v. Rolls-Royce PLC, No. 20-794 (U.S., cert. granted Mar. 22, 2021, case dismissed Sept. 29, 2021).

New York state law is not limited to foreign judicial proceedings. Indeed, because an “agreement” may be sufficient to invoke a New York state court’s assistance, an arbitration proceeding may serve as the basis for seeking New York state court assistance. The practice commentary to the statute advises that it is advisable, though, to obtain an order from a foreign court first. Consult with New York counsel for additional guidance.

It is not entirely clear whether California, Texas and Florida recognize subpoenas issued in a foreign arbitration proceeding. A person seeking discovery in those states for purposes of arbitration may need to first obtain a subpoena or order from a court in the foreign jurisdiction and then domesticate that subpoena. Consult with counsel in the applicable state for additional guidance.