Extraterritorial Application of 28 U.S.C. § 1782

In a groundbreaking decision a federal court of appeals rules that 28 U.S.C. § 1782 authorizes extraterritorial production of documents.

The case, Sergeeva v. Tripleton, originated with a Russian divorce proceeding, followed by the wife’s efforts to obtain discovery of her husband’s assets in U.S. courts under § 1782 – the law that allows foreign litigants to obtain evidence in the U.S. for use in foreign tribunals.

The wife sought documents from an Atlanta company, Trident, which, in turn, contended that the documents were physically located outside the U.S. in related off-shore entities.  The issue before the court was whether Trident was obligated to turn over documents which were located outside the U.S. but over which it technically had “control.”

Until this decision the trend in federal courts has been to reject § 1782 applications if documents are located outside the U.S.  But, until now no court had squarely addressed the issue.  The Eleventh Circuit Court of Appeals rejected Trident’s “Extraterritoriality Argument” and ruled that under the applicable procedure rules documents in the “possession, custody or control” of the party from whom discovery is sought must be turned over even if they are located outside the U.S.

The Sergeeva ruling has important implications for foreign litigants who avail themselves of the benefits of U.S. discovery under § 1782.  The ruling takes away one of the most common objections to § 1782 applications – that the documents are located outside the U.S. – and thus makes it easier to obtain documents in aid of foreign proceedings.