What Section 1782 Does
28 U.S.C. § 1782 authorizes a federal district court, in appropriate circumstances, to order a person who resides or is found in the district to provide testimony, a statement, documents, or other things for use in a proceeding before a qualifying foreign or international tribunal. An application may be made by the foreign or international tribunal itself or by an "interested person."
Unless the court directs otherwise, discovery ordered under the statute proceeds in accordance with the Federal Rules of Civil Procedure. The statute also preserves legally applicable privileges.
A party litigating abroad may not have direct access to evidence located in the United States. Section 1782 can provide a mechanism in federal court to obtain that evidence without requiring the underlying foreign proceeding to move into a U.S. court.
Representative Section 1782 Experience
Neil L. Postrygacz has represented a petitioner in related proceedings under 28 U.S.C. § 1782 in the Southern District of New York and the Southern District of Florida seeking U.S. discovery for use in Brazilian litigation. The matters have involved financial records, confidentiality, subpoena enforcement, motions to quash and compel, document production, and related discovery disputes.
In re Application of Adele Zarzur
Represented the petitioner in proceedings seeking discovery from U.S. financial institutions for use in litigation in Brazil. The court granted the Section 1782 application. Subsequent proceedings have involved challenges to the discovery order, confidentiality, subpoena compliance, document production, and disputes concerning the scope and location of responsive materials.
View S.D.N.Y. proceeding →In re Ex Parte Application of Adele Zarzur
Represented the petitioner in related Section 1782 proceedings involving authorization of subpoenas, successful opposition to a motion to quash, and motion practice concerning enforcement and production.
View S.D. Florida proceeding →Section 1782 strategy is often intertwined with the schedule and evidentiary needs of the foreign case. The U.S. application, subpoena language, meet and confer process, confidentiality issues, and enforcement strategy should be coordinated with foreign counsel from the outset.
The Statutory Requirements
A Section 1782 application generally requires the applicant to establish the statutory predicates before the court decides whether discovery should be allowed as a matter of discretion.
The discovery target resides or is found in the district. The application must be brought in the federal district where the person or entity from whom discovery is sought resides or is found.
The discovery is for use in a qualifying proceeding. The evidence must be sought for use in a proceeding before a foreign or international tribunal within the meaning of the statute.
The application is made by a tribunal or an interested person. A litigant in the foreign proceeding is ordinarily an interested person, although the statutory category can extend beyond formally named parties.
The Supreme Court has also held that the foreign proceeding need not already be pending if it is within reasonable contemplation. The inquiry is fact specific, and the applicant should be prepared to show that the contemplated proceeding is more than speculative.
Section 1782 in the Second Circuit
For applications filed in New York, Second Circuit authority is especially important. In Mees v. Buiter, 793 F.3d 291 (2d Cir. 2015), the court explained that material need not be indispensable to satisfy the statute's "for use" requirement. It is enough that the applicant will employ the material with some advantage at some stage of the foreign proceeding.
In In re del Valle Ruiz, 939 F.3d 520 (2d Cir. 2019), the Second Circuit held that Section 1782's "resides or is found" language reaches as far as personal jurisdiction consistent with due process. The court also rejected a categorical bar on discovery of documents located outside the United States, while recognizing that the location of documents can still matter to the district court's discretionary analysis.
Questions about where a discovery target is "found," the target's contacts with the district, and where responsive records are stored can be central when discovery is sought from banks, multinational companies, and other third parties in the Southern District of New York.
The Intel Factors
Even when the statutory requirements are satisfied, discovery is not automatic. In Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), the Supreme Court identified discretionary considerations that guide the district court's decision.
1. Whether the target is a participant in the foreign proceeding
If the evidence holder is already subject to the foreign tribunal's jurisdiction, the foreign tribunal may be able to obtain the evidence itself. Discovery from a nonparticipant located in the United States can present a stronger case for assistance from a federal court.
2. The nature and receptivity of the foreign proceeding
The court may consider the nature of the foreign tribunal, the character of the proceeding, and whether the foreign government, court, or agency appears receptive to U.S. judicial assistance.
3. Whether the request attempts to circumvent proof gathering restrictions
The court may examine whether the application is an effort to evade foreign proof gathering limits or other policies of the foreign country or the United States.
4. Whether the discovery is unduly intrusive or burdensome
Requests that are overbroad, disproportionate, or unnecessarily burdensome may be narrowed or denied. Careful subpoena drafting is therefore central to a strong application.
Intel also rejected a categorical rule requiring the requested material to be discoverable under the law of the foreign forum. That does not make foreign law irrelevant, but it means U.S. discoverability does not turn solely on whether the same evidence could be compelled abroad.
What Discovery May Be Sought
Depending on the facts, the target, and the court's order, Section 1782 discovery may include:
- Bank and financial records.
- Corporate books, records, and transaction documents.
- Email, messaging, and other business communications.
- Contracts, account records, and ownership information.
- Deposition testimony from individuals or corporate representatives.
- Other electronically stored information relevant to the foreign proceeding.
The statute is a gateway to discovery, not a blank check. Once discovery is authorized, issues of relevance, burden, proportionality, privilege, confidentiality, and subpoena compliance can become central. Those disputes often proceed under the Federal Rules of Civil Procedure, including Rule 45.
Financial Institutions and Records Held by Third Parties
Section 1782 is frequently considered when relevant records are held by financial institutions in the United States or other third parties outside the direct reach of the foreign tribunal. Applications involving banks can raise questions about account identification, custodians, privacy, confidentiality, the geographic location of records, and the proper scope of a subpoena.
In a contested matter, the dispute may continue well beyond the initial application. The subpoena recipient or an affected party may seek to quash or narrow discovery, and the applicant may need to move to compel compliance. The initial application should therefore be planned with enforcement in mind.
Common Objections and Discovery Disputes
Section 1782 proceedings often involve several layers of litigation. Common issues include:
Private Arbitration After ZF Automotive
The Supreme Court narrowed the scope of Section 1782 in ZF Automotive US, Inc. v. Luxshare, Ltd., 596 U.S. 619 (2022). The Court held that a "foreign or international tribunal" under Section 1782 must be a governmental or intergovernmental adjudicative body. Private adjudicatory bodies do not qualify merely because they are located abroad or resolve international disputes.
That holding matters whenever the underlying proceeding is arbitral. A private commercial arbitration is not within Section 1782 simply because it is foreign. The analysis turns on whether the adjudicative body exercises governmental authority, not merely on the label attached to the proceeding.
Applications should identify the precise foreign proceeding and address why that body qualifies under the statute. Generic references to "foreign arbitration" can obscure the threshold issue created by ZF Automotive.
Using Section 1782 Strategically
A Section 1782 application should begin with the evidence actually needed and the foreign proceeding in which that evidence will be used. Effective applications require careful consideration of the proper federal district, the relationship between the discovery target and that district, the status of the foreign proceeding, the proposed use of the evidence, and the scope of the requested subpoenas.
Those considerations are particularly important when discovery is sought from financial institutions or multinational entities, when responsive material may be stored outside the United States, or when the discovery target challenges the application after subpoenas have been authorized.
Frequently Asked Questions
Does the foreign case have to be pending before a Section 1782 application is filed?
Not necessarily. Under Intel, the proceeding can qualify when it is within reasonable contemplation, but a speculative possibility of future litigation is not enough. The facts supporting the contemplated proceeding matter.
Can Section 1782 be used to obtain bank records in the United States?
Potentially, yes. If the statutory requirements are met and the court exercises its discretion to permit discovery, a subpoena may seek relevant records from a financial institution that is properly subject to the court's authority. Scope, burden, privilege, confidentiality, and other objections still apply.
Can Section 1782 be used for a private foreign arbitration?
Ordinarily, no. ZF Automotive holds that the relevant tribunal must exercise governmental or intergovernmental authority. A private commercial arbitral panel does not qualify merely because the arbitration is foreign or international.
Does the foreign country have to permit the same discovery?
Section 1782 does not categorically require the requested material to be discoverable under foreign law. The foreign tribunal's receptivity and any attempt to circumvent restrictions on gathering evidence abroad can still matter to the court's discretionary analysis.
What happens after the court authorizes discovery?
The applicant typically serves the authorized subpoena or subpoenas. The recipient or another affected party may object, seek a protective order or move to quash. If compliance is incomplete or disputed, motion practice to compel or otherwise enforce the subpoena may follow.