For sophisticated litigants, U.S.-style discovery isn’t just for domestic disputes. Thanks to 28 U.S.C. § 1782, parties involved in foreign proceedings can tap into the broad discovery tools available in U.S. federal courts. But access isn’t automatic. Recent decisions show just how nuanced the landscape has become.
The Basics: What Section 1782 Allows
Section 1782 empowers U.S. district courts to order discovery for use in foreign or international tribunals. To qualify, three conditions must be met:
- The target of the discovery “resides or is found” in the district.
- The discovery is intended for use in a foreign proceeding.
- The request comes from a foreign tribunal or an “interested person.”[1]
Even when these boxes are checked, courts retain broad discretion. The Supreme Court’s Intel decision laid out four guideposts:
- Whether the discovery is available in the foreign proceeding;
- Whether the foreign court is receptive to U.S. judicial assistance;
- Whether the request circumvents foreign restrictions on discovery; and
- Whether the request is unduly intrusive or burdensome.[2]
While Intel provides the framework, courts continue to refine how Section 1782 plays out in practice, and there are many differences across circuits.
Here’s what’s new in 2025:
- Second Circuit: Contracts can limit Section 1782 discovery.
In Banoka S.a.r.l. v. Elliott Mgmt. Corp., the Second Circuit confirmed that courts may consider forum selection clauses in weighing discovery requests under Section 1782. If parties have agreed to resolve disputes in a foreign jurisdiction, that choice can weigh against granting Section 1782 discovery.
Takeaway: Want to avoid U.S. discovery in foreign disputes? Drafting contracts with clear forum selection and discovery limitations may help.
2. Fourth Circuit: Bearing the Burden of Asserting a Foreign Privilege.
In In re Banco Mercantil del Norte, S.A., the Fourth Circuit joined the Second, Third, and Fifth Circuits in holding that a party asserting a foreign privilege to oppose Section 1782 discovery bears the burden of proof. But unlike the Second and Fifth Circuits, it declined to adopt a rigid “authoritative proof” standard. Instead, the Fourth Circuit left the precise contours of the burden open.
Takeaway: If you're opposing Section 1782 discovery on the basis of foreign privilege in the Fourth Circuit, be prepared to prove it—but the precise standard remains unsettled.
3. Ninth Circuit: Word Protective Orders Wisely.
In Novalpina Cap. Partners I GP S.A.R.L v. Read, the Ninth Circuit held that documents produced under Section 1782 can be used in other proceedings not identified in the original petition unless a protective order says otherwise.
Takeaway: If you're responding to a 1782 request, negotiate protective orders early and carefully, and specifically state that materials are only to be used in the proceeding at hand. Narrow and restrictive protective orders may be your best shield against broader use of sensitive materials.
4. Ninth Circuit: Unmasking Anonymous Online Posters.
In In re Gliner, the Ninth Circuit tackled whether Section 1782 can be used to identify anonymous online speakers. The answer? Yes, when there is no indication that the target is entitled to U.S. constitutional protections.
Takeaway: Foreign online actors may find little refuge under the First Amendment when litigants seek their identities through Section 1782.
5. Eleventh Circuit: Section 1782 Requires Personal Jurisdiction Analysis.
In Absolute Activist Value Master Fund Ltd. v. Devine, the Eleventh Circuit aligned with the Second Circuit in determining that a target “resides or is found” in the district for Section 1782 purposes when the court may exercise personal jurisdiction over the target.
Takeaway: Discovery targets may be required to produce Section 1782 discovery in the Eleventh Circuit if they are subject to personal jurisdiction there.
Final Thought
Section 1782 remains a powerful tool for cross-border litigants, but it’s not one-size-fits-all. As circuit courts continue to refine its contours, parties should stay alert to jurisdictional nuances, contractual protections, and procedural safeguards. Whether you're seeking discovery or resisting it, strategic planning is essential.
[1] 28 U.S.C. 1782
[2] Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264 (2004)
