miscellaneous action
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What is a miscellaneous action?

A miscellaneous action is classified as an ancillary and supplementary proceeding that is not classified as a civil action. Unlike a civil action, a miscellaneous action requests the Court to use its power and authority to achieve a particular objective set out by the filing party. A common objective is the perpetuation of testimony of a witness or production of documents necessary for use in a foreign proceeding. An action to obtain documents and testimony from a witness for use in a foreign proceeding can be initiated in any of the 94 Federal District Courts in the United States pursuant to 28 U.S.C. §1782.

Foreign proceedings, in this instance, can include cases that are currently pending on an international level, such as a case in South Korea.

What laws govern this type of miscellaneous action?

For obtaining documents to be used in a foreign proceeding, 28 U.S. Code §1782 Assistance to foreign and international tribunals and to litigants before such tribunals governs this action. In particular, this statute grants district courts the authority to order a person residing in the Court’s geographical district to give testimony regarding the foreign proceeding or to produce documentation that will be used in the foreign proceeding. 

The United States Supreme Court has further explained the use of this statute through its ruling in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004). The Court in this case established the standard for when the statute can be invoked stating that “The statute may be invoked where: (1) the discovery is sought from a person residing in the district of the court to which the application is made; (2) the discovery is for use in a proceeding before a foreign tribunal; and (3) the applicant is a foreign or international tribunal or an “interested person.”1 The Fifth Circuit Court in Texas further expanded upon this standard stating that where an applicant “makes the requisite showing that it has met the statutory factors, the district court judge has the discretion to grant the application.”2

The Court in Intel also established multiple discretionary factors that the district court can follow to consider the request in the application. Those discretionary factors include: (i) whether “the person from whom discovery is sought is a participant in the foreign proceeding,” since “nonparticipants in the foreign proceeding may be outside the foreign tribunal’s jurisdictional reach” and therefore their evidence may be “unobtainable absent §1782(a) aid,” (ii) “the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance,” (iii) “whether the §1782(a) request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States,” and (iv) whether the §1782(a) application is “unduly intrusive or burdensome.”3

Courts in recent history have largely granted these applications made pursuant to 28 U.S.C. §1782. Furthermore, the question has been raised as to whether these applications violate the due process rights of the responding party. Courts have held that a respondent’s due process rights are not violated because the responding party has the opportunity to later challenge any discovery request through filing a motion to quash under Federal Rule of Civil Procedure 45(c)(3).4 Therefore, so long as the applicant can meet all requirements set out in Intel, and the application does not go against any of the discretionary factors, courts will be open to granting the application requests for testimony and document production from a witness within its district. 

When should a miscellaneous action be initiated?

For example, you are involved in a contract dispute with a company and a lawsuit is filed outside of the United States. During the discovery process, an important witness is disclosed and known to be living in the state of Texas. You learn that this person has personal knowledge of the contractual negotiations and has possession of critical documents needed to support the lawsuit in the foreign proceeding. However, the Court outside of the United States does not have the power to compel said person to testify or provide any documentation, as the important witness may be outside of the foreign court’s jurisdiction. At this time, a miscellaneous action would need to be initiated with a federal court in the state of Texas to perpetuate the testimony and obtain the requested documents from the person located in the state of Texas.

What are the steps to obtaining documents and witness statements?

Once you have determined that a miscellaneous action is needed to obtain testimony or documentation within the United States for use in a foreign proceeding, the first step is determining the initiating filing document. Though this document name may vary, the initiating document will generally have the same substance as a motion to compel. A motion to compel is a request to the court asking them to enforce a request for additional information. In this instance, the motion or application would ask the court to enforce a request for the perpetuation of testimony and production of documents from a particular person through a subpoena filed in conjunction with the motion or application.

After the motion or application has been filed, the filing party is required to serve the motion upon the party for which the documents and testimony are requested from. This service is similar to that of how a complaint is served upon a defendant when a civil action lawsuit is filed in the federal courts of the United States.

What are the restrictions on the testimony and documentation that can be obtained through a miscellaneous action?

Pursuant to 28 U.S.C. §1782(a), the district court has the authority to determine the scope of the testimony and documentation disclosed pursuant to the application initiating the miscellaneous action. This authority can extend to the practice and procedure for taking the testimony and production of the documents. However, if the Court does not prescribe the practice or procedure for taking the testimony or production of the documentation, the testimony shall be taken, and the documents shall be produced in accordance with the Federal Rules of Civil Procedure.5

Lastly, a responding party may not be compelled to give testimony or provide documentation that would violate any legally applicable privilege that the testimony or documentation may have. However, a responding party may voluntarily provide testimony or produce documentation for use in a foreign proceeding in any manner that the responding party deems to be acceptable.6


  1. Intel, 542 U.S. at 246.
  2. Texas Keystone, Inc. v. Prime Nat. Res., Inc., 694 F.3d 548, 553 (5th Cir. 2012).
  3. Intel, 542 U.S. at 264-65.
  4. In re Application of Eurasian Bank Joint Stock Company for Expedited Judicial Assistance Pursuant to 28 U.S.C. § 1782, No. 3:15-mc-106-K-BN, 2015 WL 6438256, at *1 (N.D. Tex. Oct. 21, 2015), citing Gushlak v. Gushlak, 486 Fed. Appx. 215 (2d Cir. July 3, 2012).
  5. U.S.C. §1782(a).
  6. U.S.C. §1782(b).