One of the challenges we face assisting counsel with worldwide asset recovery is the need to identify and gather evidence without access to confidential data. While we use every (legal) investigative methodology possible, we also look for situations where counsel might be able to use legal mechanisms to open up more data.
Section 1782 (§1782) is one of these mechanisms, providing broad and permissive discovery in the United States in support of litigation overseas. Although by no means a one-size-fits-all solution, we have seen the order authorise federal district courts to compel testimonies of witnesses and gather material evidence, from corporate documents to banking records and even DNA samples. To us investigators this is the proverbial cookie jar.
The additional advantage of course is that the US is both a favorable enforcement jurisdiction and a nexus of many multi-national businesses and HNW individuals. Few substantial businesses wholly avoid trading in US dollars. Therefore we often look for a US link even where none is immediately obvious. If the §1782 can then be used to crack it, all the better.
We have also worked with counsel to use the §1782 in the context of European proceedings (where discovery is limited/nonexistent) to develop new investigative leads. Where it is possible and can be made to work, it is transformative in helping to uncover related parties and activities in jurisdictions hitherto unknown.
Despite a lack of consensus around the use of §1782 – matters of reciprocity and use in the context of international arbitration remain sticking points – for those involved in worldwide asset tracing, this is a powerful evidence gathering instrument to keep in the back pocket: it is bound to come in handy.
Aran McArdle is an Analyst at Raedas specialising in international asset recovery. He was previously in the investigation team of litigation boutique Joseph Hage Aaronson LLP and holds a PhD in Legal History.