The U.S. Court of Appeal for the Eleventh Circuit recently emboldened a litigant’s ability to obtain discovery under 28 U.S.C. Section 1782 for a foreign proceeding that was only “within reasonable contemplation.” In Consorio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 2014 U.S. App. Lexis 531 (11th Cir. January 10, 2014), Concel filed an ex-parte application for judicial assistance in order to obtain evidence pursuant to Section 1782. Concel’s detailed application sought evidence from JAS USA relating to the invoicing and calculation of rates charged to Concel. Concel set forth that it contemplated civil and private criminal lawsuits against two of its former employees who Concel claimed may have violated Ecuador’s collusion laws in connection with processing and approving JAS’ (Ecuador) alleged inflated invoices.
The 11th Circuit recognized that future proceedings must be more than mere speculation. There must be reliable indications of the likelihood that proceedings will be instituted within a reasonable time to permit discovery under Section 1782. The Court noted that in civil law countries such as Ecuador, documentary evidence is generally submitted as an attachment to the pleading. Concel claimed that it had not yet brought any action because it was still waiting for the evidence it sought pursuant to the present discovery application. In light of this explanation of the ongoing investigation, the indicated intent to commence a civil action against former employees and the “valid reasons” to obtain the requested discovery, the Court affirmed the district court’s determination that foreign civil proceedings were “within reasonable contemplation.”
Thus, the 11th Circuit allowed an applicant to subpoena evidence from an American company even though the applicant is not presently involved in a foreign court so long as the proceeding is “within reasonable contemplation.”