The US Court of Appeals for the Second Circuit recently held that a district court did not abuse its discretion by granting Section 1782 discovery from a US law firm “without first making a finding as to whether those documents were discoverable abroad” from the law firm’s client. In re: SBK ART LLC, --- F.4th ----, 2026 WL 478787, at *4 (2d Cir. Feb. 20, 2026).
This ruling underscores the ability of Section 1782 to serve as a sword for litigants in foreign proceedings and that invoking "foreign discoverability" as a shield may not blunt its reach.
Background
Akin Gump Strauss Hauer & Feld LLP (Akin) served as lead international and English law counsel to Fortenova Grupa d.d. (Fortenova), a major food and retail company in Croatia. One of Fortenova’s significant shareholders, SBK ART LLC (SBK) became subject to international sanctions following Russia’s invasion of Ukraine. After a series of events, Fortenova was restructured, which caused SBK to lose its ownership interest at what it considered an "undervalued price."
SBK initiated multiple foreign proceedings, including an action in the General Court of the European Union and a lawsuit in the Malta Civil Court against entities involved in Fortenova's corporate changes. SBK also filed a petition in the Southern District of New York under Section 1782, seeking documents and deposition testimony from Akin to support its foreign claims.
The district court granted SBK’s petition but limited the requested scope. Of particular relevance here, the district court rejected “Akin’s objection that the [court] had misapplied” the Second Circuit’s decision in Kiobel by Samkalden v. Cravath, Swaine & Moore LLP, 895 F.3d 238 (2d Cir. 2018), which Akin contended held “that a district court should not exercise its discretion under Section 17892 to allow discovery of documents held by a US law firm when those documents are not discoverable from the firm’s client abroad.” In re: SBK ART LLC, 2026 WL 478787, at *1, *4.
The Second Circuit’s Decision
After a detailed summary of the law applicable to a Section 1782 petition, the Second Circuit reaffirmed that its prior decision in Kiobel “did not change the well-settled rule that Section 1782 does not impose a ‘foreign discoverability requirement.’” In re: SBK ART LLC, 2026 WL 478787, at *8. The court further observed that “we have not authorized denial of discovery pursuant to § 1782 solely because such discovery is unavailable in the foreign court.” Id. (emphasis in original).
The court’s decision provides several key lessons:
- Kiobel Does Not Exempt Law Firms from § 1782 Discovery: Kiobel did not establish a “categorical limitation under Section 1782 barring discovery of documents held by a law firm if those documents are undiscoverable from the client abroad.” Id. Rather, Kiobel turned on the “unique” circumstances of that case, including the existence of a confidentiality order protecting the requested documents. See id. at *10 (“The district court’s discovery order in Kiobel effectively allowed Section 1782 to ‘become a workaround to gain discovery’ while evading the confidentiality agreement.’”). No such confidentiality order existed in the SBK ART matter.
- No "Foreign-Discoverability" Requirement for Law Firms: The court referenced both Supreme Court and Second Circuit precedent expressly holding that Section 1782 does not include a "foreign-discoverability" requirement—i.e., that petitioners need not show that the requested materials would be discoverable in the foreign proceeding. SBK ART emphasized that adopting such a requirement for law firms would contradict this longstanding precedent, “even in the face of strong policy concerns surrounding protection of attorney-client relations.” Id. at *11.
- Ordinary Discovery Rules Sufficient to Govern Specific Disputes: Concerns about potential disclosure of privileged materials, undue burden, or interference with attorney-client relations are properly addressed through the ordinary rules of discovery after the Section 1782 petition is granted. Section 1782, the court noted, “merely acts a gate designed to prevent abuses,” and that the district court’s order appropriately balanced Akin’s concerns.
Key Takeaways
- US law firms representing foreign clients are not immune from § 1782 discovery, even if the requested documents might not be discoverable from the client in the foreign jurisdiction.
- The argument that documents are not "foreign-discoverable" standing alone is generally not a valid basis to deny a Section 1782 petition.
- Concerns regarding privilege, burden, and the scope of discovery can be addressed under the Federal Rules of Civil Procedure, rather than as a basis for denying the initial Section 1782 application.
