On January 24, 2011, the United States Court of Appeals for the Seventh Circuit issued a decision broadly interpreting a federal statute affording parties in non-U.S. litigation access to American-style discovery. Heraeus Kulzer, GmbH v. Biomet, Inc., Nos. 09-2858, 10-2639 (7th Cir. January 24, 2011). The federal Court held that a party in a lawsuit pending in Germany could be subjected to American discovery rules – which it acknowledged are “far broader than in most (maybe all) foreign countries” – even though the Court assumed that the discovery sought would not be allowed by the German court in which the case was pending. Although the Court recognized that the discovery requests might be excessive and that a “discovery demand in our courts might yield a haul of 30 million emails, few of which would be admissible in evidence [in Germany],” it held that where the requirements of the federal statute are met, a litigant in a non-U.S. dispute is entitled to obtain discovery in accordance with the Federal Rules of Civil Procedure absent a showing that the discovery is sought for an abusive motive, or would have an abusive effect.
The case presented the Seventh Circuit with the issue of whether the plaintiff (a German company) in a theft of trade secrets case pending in Germany could employ American law to require the defendant, Biomet, Inc. (an international company with offices in the U.S.), to produce documents for use in the foreign proceeding. To obtain the documents, Heraeus relied upon a federal statute, 28 U.S.C. § 1782, which authorizes the federal court in “the district in which a person resides or is found” to “order” discovery of documents and other things from such person or entity for use in proceedings before foreign tribunals.
