To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document 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 applicable privilege.
The United States Chamber of Commerce has expressed concerns as to the burden upon American businesses in having to comply with orders to produce evidence under Section 1782.
Entitling their commentary "Sweet Georgia", Garfinkel and Nelson called the Georgian decision "ground breaking".
Writing in a newsletter of the ABA's Committee on Pretrial Practice & Discovery, Jonathan I. Handler and Erica Tennyson have observed that Section 1782 "may lead to nonreciprocal access to discovery and may even allow private litigants to exploit the statute to obtain information about a competitor and force an adversary to settle the underlying dispute."
At the same time, Handler and Tennyson note that these "potential inequities" can be offset by a district court's broad discretion in deciding whether and to what extent to grant Section 1782 requests.
[9][full citation needed] The Federal appellate courts had been divided as to whether a non-US arbitration constitutes a "foreign or international tribunal" for the purposes of 1782 discovery.
[10] Some courts had undertaken a "functional analysis" and considered several factors to determine whether an adjudicatory body is a "tribunal" for the purposes of the statute.
In ZF Automotive US, Inc. v Luxshare, Ltd., 596 US (2022) (decided June 13, 2022, together with AlixPartners LLP v The Fund for Protection of Investor Rights in Foreign States), the Court unanimously held that Section 1782 did not apply to a commercial international arbitration or an ad hoc UNCITRAL investor-state arbitration.
The Court concluded thus (at page 16): "In sum, only a governmental or intergovernmental adjudicative body constitutes a “foreign or international tribunal” under §1782.
The point is only that a body does not possess governmental authority just because nations agree in a treaty to submit to arbitration before it.
The Court found that there was “insufficient support” for the argument that Malta and China (the two relevant States) had “intended to imbue the ICSID arbitration panel with government authority".
Sherby has argued that most cases that have addressed the subject do not expressly hold that there is any geographical limitation to section 1782 and that, in determining whether to apply section 1782 to documents outside the US, the main issue that courts have considered is whether there is evidence indicating either (1) that the applicant is trying to circumvent a restriction of the foreign tribunal or (2) that an order of production would interfere with the foreign proceedings.
[14] The U.S. Court of Appeals for the Ninth Circuit declined to rule on the point in Four Pillars Enterprises Co v Avery Dennison Corp 308 F3d 1075 (2002).
The Seventh Circuit refused extraterritorial discovery in Kestrel v. Joy Global, 362 F.3d 401 (2004), but this appears mainly to have been because the documents sought were outside the target company's files.
Subsequently, however, the Eleventh Circuit allowed extraterritorial discovery in Sergeeva v Tripleton Int’l Limited 834 F3d 1194 (2016).