In this post, we’re introducing an updated guide for using the Foreign Legal Assistance statute to access evidence in the US to support corporate accountability proceedings abroad.
In 2019, CAL partnered with EarthRights International to update their Guide to the Foreign Legal Assistance statute. We were excited to enter this partnership because we view this strategy as exactly the sort of legal innovation the human rights community needs right now. In the face of dwindling legal strategies to protect people and the planet from abuse by companies operating abroad, at CAL we experiment with unconventional legal tools to see what might move the needle. We view the work of EarthRights around this statute as a model for other legal innovations in this space, and this newly updated guide as the type of tool advocates will need to amplify such strategies. Check out the newly revised guide in English and Spanish.
The strategy
The Foreign Legal Assistance statute (28 U.S.C. § 1782, known as “FLA” or “Section 1782”) provides an opportunity for those involved in legal proceedings outside the US to directly request access to information located in the US to assist in those proceedings. A person can submit an FLA request to a US court while the foreign lawsuit is ongoing or in preparation. Although US judges have discretion to deny FLA requests, they are often granted and can make a significant difference for plaintiffs.
Why is this strategy important?
While discovery rules vary in different countries, this statute provides a straightforward channel for access to information located in the US--particularly useful where a US company is complicit in or directly responsible for the abuse.
Courts granting FLA requests usually follow US rules allowing for broad discovery-- this includes information that is likely to be relevant in the foreign proceeding, even if the person requesting the information doesn’t know exactly the content of the information or even if the evidence they are seeking exists. Granted FLA requests can provide access to depositions, document requests, and sometimes interrogatories and physical evidence.
Given that the US is an increasingly difficult jurisdiction for transnational human rights cases against companies, this tool provides an opportunity for workers and community members to access key evidence located in the US even where they may not have been able to bring suit there.
EarthRights has leveraged FLA requests to obtain a settlement against a Chevron subsidiary in Nigeria for claims around human rights and environmental harm; support a case against Thomson Safaris, a US affiliate of a company alleged to have participated in violence and land grabbing, in Tanzania; and in a criminal prosecution against Minera Yanacocha and police officers in Peru accused of violence against anti-mining protesters.
At CAL, we’re always working on new legal angles to hold companies accountable and are energized by the potential of this strategy. As multinational companies too rarely face consequences for violating human rights and past strategies for human rights protection are difficult to use, this is exactly the kind of innovation we need to better protect people and the planet. We’re looking forward to seeing how lawyers working worldwide to hold companies to account will use this strategy.
If you have questions about this strategy or ideas for its potential use, contact us at info@corpaccountabilitylab.org or EarthRights International at infousa@earthrights.org.
Avery Kelly is a staff attorney at Corporate Accountability Lab.
