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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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