Exporting American Discovery

Abstract

This Article presents the first comprehensive study of an intriguing and increasingly pervasive practice that is transforming civil litigation worldwide: US judges now routinely compel discovery in this country and make it available for disputes and parties not before US courts. In the past decade and a half, federal courts have received and granted thousands of such discovery requests for use in foreign civil proceedings governed by different procedural rules. I call this global role played by US courts the “export” of American discovery.

This Article compiles and analyzes a dataset of over three thousand foreign discovery requests filed between 2005 and 2017 under 28 USC § 1782—an expansive statute that is now the pivotal law governing the export of American discovery. I use the dataset to show that the foreign civil demand for US discovery has approximately quadrupled during the study period, that demand from foreign private actors now overshadows demand from foreign tribunals, and that the requests’ countries of origin have diversified. I then map the ways in which the machinery of domestic discovery is distorted in the context of global discovery, leading to missing foreign stakeholders and systematic bias toward compelling discovery. Reflexively exporting US discovery, in turn, undermines Supreme Court doctrine, risks imposing unintended externalities on foreign tribunals and foreign litigants, and erodes universal notions of fairness and due process.

Although foreign discovery requests account for a small fraction of federal dockets, they provide an illustrative case study of the larger phenomenon of disputes straddling multiple legal systems. Litigants and attorneys are now strategizing across borders and deploying national procedural tools to their global advantage. Yet, judges continue to operate within national silos even as they play a global role. Consequently, judges are at an informational disadvantage when they adjudicate disputes only parts of which are before them. This contemporary challenge calls for institutional solutions in the form of court-to-court information sharing and coordination across borders, as well as a reconceptualization of federal judges as global actors who share overlapping authority with foreign judges and arbitrators.