a guide

Using U.S. Courts to Obtain
Information for Foreign Legal Cases
foreign legal assistance actions under 28 u.s.c. § 1782

This guide was produced by
EarthRights International andCorporate Accountability Lab.
EarthRights International is a nongovernmental, nonprofit
organization that combines the power of law and the power ofpeople in defense of human rights and the environment, which
we define as “earth rights.”
We specialize in fact-finding, legal actions against perpetratorsof earth rights abuses, training grassroots and community
leaders, and advocacy campaigns. Through these strategies,
we seek to end earth rights abuses, to provide real solutions
for real people, and to promote and protect human rights andthe environment in the communities where we work. We haveoffices in Southeast Asia, the United States and Peru.
Corporate Accountability Lab brings together legal design andhuman rights expertise to protect people and the planet from
corporate abuse.

For more information about our cases and Foreign Legal
Assistance actions, please contact our office in Washington, D.C.
infousa@earthrights.org+1 (202) 466 5188
   EarthRightsIntl
www.earthrights.org
Corporate Accountability Lab
info@corpaccountabilitylab.org
www.legaldesign.org

about foreign legal assistance

Foreign Legal Assistance Actions
Corporations or individuals in the United States sometimes
have information that is useful or necessary to a case in a court
or tribunal outside the United States. The U.S. Foreign Legal
Assistance (FLA) Statute, 28 U.S.C. § 1782 (also known as“Section 1782”), may offer a way for those with an interest in thecase to obtain that information.
A FLA action is a request to a federal court in the UnitedStates. It asks the court to help a foreign court, or a party witha relevant interest in a foreign legal case, obtain information
which can be used in that legal case. The process of obtaining
such information is known as “discovery.” The discovery can bein the form of testimony, documents, or physical evidence.
The request can be made while the foreign legal case is active,
or under preparation.
While this assistance is often granted, this is a discretionary
application and the U.S. court is not required to grant FLA
requests. This means that even if all the legal requirements forthe request are met, the judge may still reject it.

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How a FLA action may be used
Section 1782, the Foreign Legal Assistance Statute(the FLA), allows an “interested person” to request
information belonging to a U.S. person or company if
the information will be helpful in a proceeding in aforeign or international tribunal.
The FLA can be an especially powerful tool because
although most countries have some form of discovery
or information disclosure in lawsuits, the procedures
vary from country to country and it can often be
difficult to obtain information from a person orcompany located in the United States. The FLA
makes this discovery much easier as the information
requests are made directly through U.S. courts.
Courts granting FLA requests usually follow thesame rules and procedures for discovery as they dofor U.S. domestic cases, which allow a broad rangeof discovery of information. Applicants can ask for
documents or evidence that is likely to be relevant totheir legal action. They can request information even
if they do not know exactly the content, and even if
they do not know whether or not the evidence exists.

An interested per
son only needs tohave a “reasonableinterest in obtaining
the assistance.”
They do not need
to be a party to theforeign proceeding.
To learn more,
see page 7.

There is no clear
rule on what a “pro
ceeding in a foreign
or international
tribunal” can be, but
examples include“investigating magistrates, administrative and arbitral
tribunals, and quasijudicial agencies.”
To learn more,
see page 6

about foreign legal assistancelimitations
While FLA actions are potentially very useful tools for obtaining
information, there are some limitations on their availability.
Even if you meet all of the legal requirements, a judge may still
decide not to grant the application for foreign legal assistance. If
the judge denies a FLA request, the person making the request
may appeal. However, the appellate court will only reverse theprevious decision if it finds that the judge made an error, such as
applying the wrong legal standard to evaluate the request.
Also, U.S. federal courts are divided up into regions, and courts
in different regions may have different interpretations of thestatute, so the rules that apply in a FLA action are not always thesame throughout the United States. This means that the samequestion or issue might get a different answer, depending on
where the request was made.
Some questions and issues related to obtaining information inthis way have not yet been considered by any U.S. court, or have
only been considered in a few cases. So there may not be a lot oflegal rulings, or “precedent,” and not every question will have aclear answer.

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the statutory text
the full text of the fla statute, from the u.s. federal code.
28 U.S.C. § 1782
Assistance to foreign and international tribunals and to litigants before
such tribunals(a)

The district court of the district in which a person resides or isfound may order him to give his testimony or statement or to
pro-duce a document or other thing for use in a proceeding in aforeign or international tribunal, including criminal investigations
conducted before formal accusation. The order may be madepursuant to a letter rogatory issued, or request made, by a foreign
or international tribunal or upon the application of any interested
person and may direct that the testimony or statement be given,or the document or other thing be produced, before a person
appointed by the court. By virtue of his appointment, the person
appointed has power to administer any necessary oath and takethe testimony or statement. The order may prescribe the practiceand procedure, which may be in whole or part the practice andprocedure of the foreign country or the international tribunal, fortaking the testimony or statement or producing the document
or other thing. To the extent that the order does not prescribe
otherwise, the testimony or statement shall be taken, and the
docu-ment or other thing produced, in accordance with the Federal
Rules of Civil Procedure.

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 applicableprivilege.

(b) This chapter does not preclude a person within the United Statesfrom 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.

frequently asked questions

5

Frequently Asked Questions
WHAT KIND OF INFORMATION CAN I OBTAIN THROUGH A
FLA ACTION?
The statute itself mentions discovery of testimony anddocuments – this includes depositions and document
requests. In a few cases, courts have ordered other forms ofevidence. These include interrogatories (written questions),
as well as physical evidence such as blood samples. Most
courts have only allowed testimony and documents however,and one court recently rejected interrogatories.
The FLA allows the U.S. court to either follow the rulesof the foreign court in determining what information
to order and how it will be produced, or to follow theordinary rules that apply in federal court cases – theFederal Rules of Civil Procedure.
WHO CAN I SEEK INFORMATION FROM?
Under U.S. procedures, FLA requests may be made to
any corporation or person, and possibly a governmental
official – but not a government agency – that may haverelevant information. There are, however, some special
considerations.
First, a U.S. court may be less willing to grant a request
against a person or corporation that is already aparticipant in the foreign legal case, because the foreign
court itself could order that person to disclose theinformation. In the Chevron case mentioned in thisguide, the foreign legal action was against Chevron
Nigeria, but the request was directed to Chevron
Corporation, the parent company in the United States,
which was not subject to the authority of the Nigeriancourts.

In a deposition,a person gives
testimony, underoath, in a recorded
proceeding outsideof court.
Document
requests canbe used toget particular
documents or otherrecords (including
digital files andaudio and video
recordings).
Interrogatories
are written
questions that must
be answered underoath.
Physical evidence
is any physicalobject used as
evidence, such as
blood, fingerprints,
or footprints.

Second, courts will generally require corporations
to produce information that is in the hands ofanother corporation that it owns – a subsidiary – if the parent
corporation effectively controls the subsidiary. But as discussed
below, some courts may place limits on providing information

Continued Page 6

6located outside the United States.
Courts have also disagreed on whether information may
be obtained from attorneys in the United States who holddocuments relevant to foreign cases.
Additionally, foreign diplomats and embassies in the UnitedStates, and international organizations such as the United
Nations, may have immunity from FLA actions.

WHAT KINDS OF FOREIGN LEGAL CASES ARE COVERED BYSECTION 1782?
There is no clear rule on what kinds of foreign legal cases may
be supported through a FLA action, and some courts disagree.
However, all U.S. courts should agree that the statutecovers:› ordinary court cases;› criminal investigations by magistrates, before acriminal case has been filed (in legal systems where
judges investigate and arrange for prosecutions ofcrimes);		
› administrative tribunals, and› cases in international courts, such as the International
Court of Justice or regional court systems.
Some U.S. courts may disagree on whether the statutecovers:› arbitration tribunals;› governmental proceedings that do not result in
adjudication of cases (such as an investigating
commission of a foreign legislature or executive
agency), and› other methods of alternative dispute resolution, suchas conciliation and mediation.
Courts generally have not yet considered whether the
statute covers:› cases in national or regional human rights
commissions, and› other cases that may result in a decision, but where
the decision is not legally binding.

Administrative
tribunals arecourts run bygovernment
agencies, andtypically consider
government
actions andbenefits (such as
immigration, patent,
or social security
proceedings).
In arbitration
tribunals,
participants agree
to have their casedecided by private
arbitrators rather
than a court. There
are different typesof arbitration
proceedings, andcourts are not inagreement about
which, if any, can besupported through a
FLA action.

frequently asked questions

WHO CAN FILE A FLA REQUEST?
The FLA allows requests from foreign courts themselves as well
as foreign prosecutors and anyone who is an “interested person”
in a foreign case.
Some foreign courts themselves have filed FLA petitions.
Foreign governments may use an international agreement
known as the Hague Evidence Convention.
Many countries also have Mutual Legal Assistance Treaties(MLATs) with the United States that address obtaining discovery.
Unless the MLAT specifically says that its procedures are theexclusive way for the other country to obtain evidence from theUnited States, prosecutors can typically use the FLA directly
instead of, or in addition to, the procedures of the treaty.

WHO IS AN “INTERESTED PERSON”?
There is no single definition for an “interested person.” Itdefinitely includes parties in the foreign legal case, such as aplaintiff, defendant, or prosecutor.
An interested person can also be anyone with a reasonableinterest in obtaining the information, and may include people
who initiate an investigation, or anyone who has a right to submit
information in a legal case – for example, in many countries,
victims of crimes can submit evidence in criminal cases.
It may be more difficult to show that the person requesting theinformation is an “interested person” if they are not a party inthe foreign proceeding.
Some courts have said that the requester must have an “activerole” that goes beyond “monitoring the progress of litigation
and receiving updates from parties to the litigation.” Others
have noted that the requestor must have access to a process ormechanism that will allow them to submit the evidence.

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8case iPlaintiffs in a Nigerian lawsuit against Chevron’s Nigerian
subsidiary used a FLA petition to request evidence fromChevron Corp. in the United States, including environmental impact assessments and other evidence of the harmfulenvironmental and health effects of gas flaring.
Gas flaring destroys crops by contaminating the surrounding air and soil. Health impacts include skin rashes andrespiratory infections, as well as increased risk for asthma
and cancer.
The villagers dismissed the FLA request after reachinga confidential settlement. While the terms of the settlement are confidential, the plaintiffs are pleased with theoutcome. The villagers later submitted documents fromChevron Corp. to the court in Nigeria.
EarthRights believes that this may be the first case inwhich a public interest group has used a Foreign Legal
Assistance request to assist communities in obtaining
information from an American multinational.
photo cc by ken doerr

More information about this case is available atwww.earthrights.org/legal/foreign-legal-assistancefrequently asked questions

AT WHAT STAGE OF THE CASE CAN I REQUESTASSISTANCE?
The foreign legal case can be at any stage, as long as the person
requesting the information will be able to use it in the case. The
case does not even need to be filed yet.
The FLA statute mentions “criminal investigations conducted
before formal accusation,” and the Supreme Court has also
stated that the case does not need to have been filed already,only that it is within “reasonable contemplation.” So it may
be possible to get information through the FLA before thelegal action is filed, for example when doing a fact-finding
investigation that may lead to a legal case.
Although courts have generally interpreted “reasonable
contemplation” broadly, some courts have said thatthe requestor must demonstrate that they are actuallycontemplating using the information in a legal action.
Courts have also granted requests for information to use inproceedings to enforce judgments after trial, as well as in active
investigations, trials and appeals.
DO I NEED TO TRY TO OBTAIN THE INFORMATION IN THE
FOREIGN COURT FIRST?
There is no requirement to ask for the information in theforeign court before applying to a U.S. court. That said, if theinformation would be easy to obtain through the foreign court,
the U.S. court may be less likely to grant the FLA request.
U.S. courts have often allowed discovery of information thatcannot be obtained through the discovery procedures in theforeign court. It may be a problem however, if the foreign
tribunal is likely to reject the information, and not allow it to be
used in the case.

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DOES IT MATTER WHERE I FILE?
Yes. Under Section 1782, a court only has jurisdiction
to consider a FLA action if it is filed where the personfrom whom information is sought “resides” or is“found.”Since multiple courts may be able to grant a request
over the same person or company, applicants mayneed to consider which is the best court for filing arequest. A court may reject a request if the party has
already filed a similar request in a different court.
Where you file does not necessarily need to be where
the evidence is. For example, a person or company
may be “found” somewhere, but have access torelevant documents which are located elsewhere.
DOES IT MATTER WHERE THE DOCUMENTS ORTESTIMONY MAY BE LOCATED?
There may be geographical limitations on obtaining
information, but the rules depend on whether you areseeking documents and other physical evidence or if
you are seeking oral testimony. It may also depend on
where you file the request.
For documents, courts have disagreed about whether
you can use a FLA request to obtain information
located outside the United States – for example,
documents maintained by a foreign office or
subsidiary. Some courts have required companies toprovide documents located outside the U.S., especially
if the documents are controlled by someone in the
U.S., but others have not.
If you are seeking testimony from a specific person
however, you should file the request in the district
where the person lives. You can only require theperson to travel 100 miles to take a deposition, but thedeposition can be arranged at any location; it does notneed to be in the same city as the courthouse.

An individual person“resides” where
their principal home
is, and is “found”
wherever they arephysically present
when officiallynotified of therequest.

Companies generally“reside” or are“found” where they
are incorporated
or where their
headquarters arelocated, and possibly
also where they
conduct significant
business.

frequently asked questions

ARE THERE ANY LIMITS ON OBTAINING INFORMATION
THROUGH A FLA ACTION?
In general, you can try to obtain any information that is relevantto the foreign legal case, but there are limits.
The U.S. court might deny or limit requests that are too
burdensome or intrusive – that is, if they ask for too many
documents, or information that is too difficult or too expensive
to obtain, or information that is personal or sensitive.
The U.S. court will also deny requests for information that isprivileged, such as communications between a lawyer and client.
This also applies to foreign legal privileges, although the court
may require “authoritative proof” that disclosing the information
would violate a foreign privilege.
The court will deny requests if the judge thinks they aredesigned to harass the person who has the information.
The U.S. court may also reject a request if the foreign court is
not likely to accept the information requested (for example, due
to the stage the litigation is at, or other procedural limits of theforeign court) and might ask the foreign court if it will accept it.

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case ii

The leaders of three Maasai villages in Tanzania filed a
FLA request against Thomson Safaris, the American
affiliate of a safari company that allegedly participatedin land-grabbing and violence against their communities. The Maasai successfully obtained documents andtestimony to assist with their lawsuit against the safari
company in a Tanzanian court.
photo: maasai men of sukenya village
credit: minority rights groupMore information about this case is available atwww.earthrights.org/legal/foreign-legal-assistancefrequently asked questions

CAN I USE THE INFORMATION OBTAINED FOR PURPOSESOTHER THAN THE FOREIGN PROCEEDING?
Under the statute, courts may order information to be produced“for use in a proceeding in a foreign or international tribunal,” butthe statute does not limit its use to that proceeding.
Unless the parties agree or the court orders that the information
can only be used for the foreign case, the information obtained
can be used for any purpose.
However, the court may deny a request if it thinks that the
information is being sought for another purpose, or it is beingsought in bad faith.
The court may also grant the request but place conditions on
how the information can be used. For example, the court could
require that the information be kept confidential except tosubmit it to the foreign tribunal.
CAN THE PARTY THAT I AM SEEKING INFORMATION FROMASK FOR INFORMATION FROM ME?
Maybe. Some courts have ruled that the person requesting theinformation also has to provide information on a reciprocal basis,but others have rejected this.
A court may be more likely to require “reciprocal” discovery if
the other party is participating in the foreign proceeding (andtherefore has a similar need for the information), and if theother party could not use the FLA to obtain the informationfrom the requesting party (for example, if the requesting party
is not found in the United States). The court may require theother party to meet the same standards in order to grant thereciprocal discovery.

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HOW MUCH DOES IT COST TO FILE A FLAREQUEST?
There are three kinds of costs that may be associatedwith a FLA request.
First, anyone who files a case in federal court must
pay a filing fee, which is often around US$400-500.
(Sometimes there are other fees as well.) But if you
are unable to pay, you can apply to have the fees
waived. This is called in forma pauperis.
Second, if you are requesting depositions, you willneed to pay a small fee to the person giving testimony,and pay to hire an official court reporter to administerthe oath and transcribe the deposition. The court
reporter can cost more than a thousand U.S. dollars
per day, so be careful when requesting depositions.

Someone who isgranted in forma
pauperis status
does not have to
pay court fees.
To seek this status,
you need to submit
an application thatshows that you
have little income
or property.

Third, it is possible that you will need to pay for thecosts of searching for, copying, and sending any
documents or other forms of evidence. Normally, theperson who has the documents would pay for thesecosts. However, in a few cases, courts have required
the requesters to split the costs, or pay all of the costs.
Other courts have required the requesters to pay abond beforehand.

In a deposition, aperson gives testimony, under oath, ina recorded proceeding outside of court.

The court will almost always tell you beforehand if it
is going to require you to pay these costs, and if you
have already established in forma pauperis status,then most courts will be less likely to make you pay
costs, especially if you are seeking information from awealthy corporation or individual.

A bond is anamount of money to cover thecosts of searching
and copying.

what should the request look like?
how do i ensure the court accepts it?
There is no standard form or template for FLA actions,
but EarthRights International can provide examples ofsuch requests. You should also have a U.S. lawyer who
is familiar with the local rules and procedures in the
court where you are filing.

frequently asked questions

HOW LONG WILL THE PROCESS TAKE?
This will vary depending on a number of things. If the person with
the information does not object to the request, it may take as little
as a few months to actually gather the information. If there is a fightin the court however, it may take months or even years before any
information is produced.
Since there is no strict timeline for a judge to decide whether or
not to grant a request, it could take months for a judge to issue adecision. So it is best to make the request well in advance of when
the information will be needed.
IF I FILE THE REQUEST PROPERLY, AM I GUARANTEED TO GETIT?
No. The final decision is left to the discretion of the judge. Even if
all the requirements are met, the judge can still deny or limit therequest.
As discussed above, you can appeal a denial, but appeals may bedifficult because district court judges are given a lot of discretion on
FLA requests.
The other party may also appeal if the FLA request is granted, so
discovery may later be denied on appeal.
ARE THERE ANY PENALTIES IF THE REQUEST IS DENIED?
Maybe. If a request for assistance is denied, the court may require you
to pay the costs of the other side, but we have not seen cases where
this has actually happened. (In the U.S. legal system, “costs” arelimited and do not include lawyers’ fees.) It is unlikely that a requester
who has little money will be required to pay the other side’s costs.
HOW CAN I GUARANTEE THAT THE FOREIGN TRIBUNAL WILLACCEPT THE EVIDENCE?
Rules on what evidence will be accepted vary in different countries
and court systems. You or your lawyer should research what isnecessary so that the tribunal will accept evidence obtained throughthe FLA action. Sometimes the foreign court may also require a
certification from the party producing the evidence, which you canrequest from the U.S. court.

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Checklist for Foreign Legal AssistanceThis checklist briefly summarizes the key requirements for a Foreign
Legal Assistance action.
If your case meets these requirements and would benefit from a
FLA request, please contact EarthRights International at infousa@
earthrights.org for further discussion.

1.

purpose□□ Does an individual or corporation in the United States haveevidence that would help your case? Is the evidence located in
the United States?
››

Evidence can include documents and testimony, and needs to
be intended to assist a legal case. Courts may allow discovery of
documents located outside the United States, but it is easier toobtain documents within the U.S. Testimony can only be obtained
from witnesses in the U.S.

□□ Could the evidence be used in the foreign case?
››2.

A court is more likely to grant the request if you can show that theevidence would be accepted by the foreign court or tribunal.

foreign case□□ Is a legal case ongoing in another country? If not, is there an
investigation that may lead to a case?
››

The evidence must be useful for some foreign legal proceeding –it is simplest if this is an ongoing case, but cases at other stages,
including investigation, may also qualify for legal assistance.

□□ Is the case in a court or a similar tribunal?
››

U.S. courts will generally provide assistance to cases in foreign
courts. Other kinds of tribunals and processes may also qualify,
especially if they may result in a binding decision.

fla checklist

3.

parties□□ Are you a participant in the foreign case, with the ability tointroduce evidence?
››

The request must be made by an “interested person.” This
doesn’t need to be a party to the foreign case, but it is easiest
to obtain assistance if you have the ability to introduce
evidence in the foreign case.

□□ Is the person who holds the evidence NOT a participant in
the foreign case?
››

U.S. courts can grant legal assistance to obtain evidence
from individuals and corporations who are participants in theforeign case, but it may be easiest to obtain evidence fromothers who are not direct participants.

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