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29 Hastings Int'l & Comp. L. Rev. 381 (2005-2006)
Majority and Dissent in Intel: Approaches to Limiting International Judicial Assistance

handle is hein.journals/hasint29 and id is 395 raw text is: Majority and Dissent in Intel: Approaches to Limiting International Judicial Assistance By E. MORGAN BOEING* Introduction Under federal law, when there is a proceeding in a foreign or international tribunal, an interested person may obtain access to evidence located in the United States for use in that proceeding. In the 1980s, a split emerged among the circuit courts regarding the interpretation of the rule governing this type of discovery. Some courts held that for a district court judge to grant the discovery, the evidence sought would have to be obtainable under the foreign jurisdiction's law if it were located in the foreign jurisdiction. Other courts, seeing no such requirement in the federal statute, refused to read one into it. The Supreme Court resolved the split in 2004 in Intel v. Advanced Micro Devices,1 coming out in support of the latter position. The Court held that the statute in question contained no foreign discoverability requirement, but that a district court judge's discretion in granting discovery is not unlimited; just because a judge is authorized to grant discovery does not mean that she should. The Court enumerated a four-factor balancing test for a judge to use in deciding whether to exercise her discretion. Only Justice Breyer dissented. Rather than endorse the foreign discoverability requirement as previously formulated in the circuit courts, he took the position that discovery should be disallowed in two situations: where the foreign body insists that it is not a tribunal and where discovery would be unavailable both under foreign law and in analogous domestic litigation. He also stated that the Court should use its supervisory powers to promulgate rules thus limiting the J.D. Candidate, University of California, Hastings College of the Law, 2006. 1. Intel Corp. v. Advanced Micro Devices, 124 S. Ct. 2466 (2004).

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