Assessing International Discovery after Intel v. AMD (US Supreme Court, 2004): Expanded US Discovery Opportunities for Foreign Litigants?

Abstract

US law governing foreign judicial assistance authorises parties to foreign proceedings to obtain discovery in the United States for use in these proceedings. In the past, however, it was unclear whether US courts could grant document discovery for use in foreign courts when the latter could not legally authorise discovery if the documents were located in their own jurisdiction. In Intel v. AMD (2004), the US Supreme Court eventually ruled that there was no such foreign discoverability requirement. This decision could be criticised because it fails to heed international comity. For one thing, the Court dismissed the European Commission’s characterisation of the proceedings of the Directorate-General Competition as not being before a foreign tribunal, a characterisation which would have barred the Court from applying the foreign judicial assistance proceedings. For another, obviously, the rejection of a foreign discoverability requirement does not particularly reflect respect for foreign nations’ evidence-taking laws. However, as far as the latter criticism is concerned, the Supreme Court should be commended for setting forth a number of factors informed by reasonableness that lower courts could employ to reject transnational discovery requests in specific instances.