Parties involved in litigation outside the United States often seek to obtain evidence from individuals and entities located in the United States. Section 1782 of Title 28 of the United States Code provides a mechanism for obtaining such evidence. This statute authorizes U.S. district courts to order persons or entities who reside or are “found” in the United States to give testimony or produce documents for use in proceedings before foreign or international tribunals. Accordingly, a party involved in a foreign dispute should proactively assess whether Section 1782 can be used by the party or its opponent to gather evidence.
Last year, U.S. courts issued several important decisions that highlight arguments that can be made to both pursue and defend against Section 1782 discovery.
Overview of Section 1782
Notable Features
Section 1782 has several distinctive characteristics that make it attractive to foreign litigants (or would-be litigants). The statute permits pre-litigation discovery so long as litigation is within “reasonable contemplation.” Applications are typically filed ex parte, allowing applicants to seek discovery orders without notifying the discovery targets. Additionally, a discovery target need only be temporarily present in the district to be “found” there.
Section 1782 may also offer broader discovery than what is available in the foreign jurisdiction, particularly if litigation has not yet commenced. There is no threshold requirement that Section 1782 discovery be admissible or discoverable under the rules of the foreign tribunal. Furthermore, under Section 1782, U.S. courts can compel the production of documents located not only domestically but also abroad, if they are in the possession, custody, or control of a person found in the United States.
Statutory Requirements
Section 1782 has three statutory requirements. First, the target of discovery must reside or be “found” in the judicial district where the application is filed. Second, the discovery must be “for use in a proceeding in a foreign or international tribunal.” Third, the request must come from the foreign or international tribunal itself or from an “interested person.”
Discretionary Factors
Even when the statutory requirements are met, U.S. courts have broad discretion to grant or deny Section 1782 requests. In Intel Corp. v. Advanced Micro Devices, Inc., the U.S. Supreme Court enumerated four non-exclusive factors for courts to consider: (1) whether the discovery target is a participant in the foreign proceeding; (2) the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign authority to U.S. judicial assistance; (3) whether the Section 1782 request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign county or the United States; and (4) whether the Section 1782 request is unduly intrusive or burdensome.
Notable Developments from 2025
Last year, U.S. appellate courts issued significant decisions concerning Section 1782 that highlight three strategic issues to consider.
Consider the Possibility of Pre-Litigation Discovery
In Qatar National Bank v. Perles Law Firm, P.C., the D.C. Circuit affirmed a Section 1782 discovery order against a U.S. law firm even though no foreign litigation was pending. 2025 WL 2945746 (D.C. Cir. Oct. 17, 2025). The petitioners sought discovery to identify the alleged forgers of a wire transfer record for use in contemplated French proceedings that had not been commenced. As the court explained, per Intel Corp., Section 1782’s “for use” element does not require a pending or imminent case; it is sufficient for a foreign proceeding to be in “reasonable contemplation.” The court found the requirement satisfied where the petitioners had retained French counsel, analyzed specific French-law claims, verified unexpired limitations periods, and committed to filing suit immediately upon identifying the responsible parties.
Assess Whether Documents Sought Can Be Used in Other Proceedings
In Novalpina Capital Partners I GP S.A.R.L v. Read, the Ninth Circuit held that documents produced under Section 1782 for use in one proceeding may be used in other proceedings absent a contrary order from the district court. 149 F.4th 1092 (9th Cir. 2025). Joining the Second and Eleventh Circuits, which reached the same conclusion in In re Accent Delight International Ltd., 869 F.3d 121 (2d Cir. 2017), and Glock v. Glock Inc., 797 F.3d 1002 (11th Cir. 2015), the court reasoned that nothing in Section 1782 limits discovery use to only the proceedings identified in the Section 1782 petition, and that protective orders provide the appropriate mechanism for litigants to restrict subsequent use when warranted.
Consider Forum-Selection Clauses
In Banoka S.à.r.l. v. Elliott Management Corp., the Second Circuit held that it is permissible for courts to consider the existence of a forum-selection clause as a factor when weighing Section 1782 requests. 148 F.4th 54 (2d Cir. 2025). In so ruling, the court joined the Seventh Circuit, which reached the same conclusion in In re Application of Venequip, S.A. v. Caterpillar Inc., 83 F.4th 1048 (7th Cir. 2023). The court affirmed the denial of pre-suit discovery where the parties had contractually agreed to litigate in English courts, where it was unlikely that pre-suit discovery of the materials in question would be permitted.
Conclusion
Section 1782 is a powerful resource for cross-border litigants, but its application requires careful legal and strategic analysis. As set forth above, parties should take into account that: (1) pre-litigation discovery may be permissible when foreign proceedings are reasonably contemplated; (2) materials obtained under Section 1782 may potentially be used in other proceedings unless restricted by a protective order; and (3) forum-selection clauses may potentially be invoked to avoid Section 1782 discovery.
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