Under 28 U.S.C. § 1782, parties with an interest in an actual or anticipated foreign litigation can seek discovery for that foreign litigation from entities who reside or are "found" in the United States. Thus, for example, a party to a foreign litigation can obtain discovery in the United States from its adversary's United States subsidiary or any other entity that is "found" here, making § 1782 a very valuable too. Indeed, as opposed to foreign jurisdictions where discovery is limited or effectively nonexistent, a U.S. resident subject to § 1782 discovery could be compelled to comply with full scope of discovery allowable under the Federal Rules. Cf. Crocs, Inc. v. Cheng's Enterprises, Inc., Case No. 1-06-cv-00605 (D. Colo. Jan. 11, 2021) (Order) ("In a colossal waste of attorney time and judicial resources, Dawgs refuses to produce a copy of the Settlement Agreement entered into between itself and George Boedecker, a cofounder of Crocs, even though all parties agree the document is relevant and material."). Accordingly, what it means to be "found" in a jurisdiction is a key question for obtaining information from foreign adversaries.

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Originally published by IP Law Daily

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