Section 13-21.Discovery outside of the United States of America

Section 13-21 addresses discovery that reaches outside the United States. When an applicable treaty or convention makes the available discovery inadequate or inequitable — but does not flatly prohibit more — the judicial authority may order additional discovery on terms it considers just and equitable. Before doing so, the court weighs a list of factors: what methods the treaty allows, whether the treaty bars particular methods outright, whether the discovery would violate the foreign nation’s criminal law, whether the foreign court system offers its own path to judicial assistance, how important the requested material is to the case, how specific the request is, whether the information originated in the United States, what alternatives exist, the competing interests of the United States and the foreign nation, whether the request is unreasonably intrusive or burdensome, whether it can be narrowed, foreign ownership of the party, the cost of compliance, and whether the foreign country requires discovery to go through a judicial officer.

The section also clarifies that, for these purposes, discovery includes taking testimony by deposition on oral examination, so the same balancing test applies when a party wants to depose a witness located abroad.