Section 1782 of the United States Code (Assistance to foreign and international tribunals and to litigants before such tribunals) allows a foreign tribunal, litigant (or other interested person) to obtain evidence from persons found in the United States for use in a foreign proceeding. Used correctly, this can be a powerful and strategic tool. 

Almost every aspect of the statute has been litigated. The meaning of some provisions is well-settled, but of others may be unclear or the meaning may be counterintuitive. We'll start with the application, later the defense. An application has four mandatory statutory requirements, and four discretionary elements.

The Application. A Section 1782 petition or application is filed in the federal district court in which the person from whom discovery is sought can be found. Practice note: do not not choose a civil action but miscellaneous on the civil cover sheet. This is akin to subpoena enforcement under Federal Rule of Civil Procedure 45. If discovery is sought from more than one person and they are found in different districts, a separate application for each one is required. This may lead to inconsistent rulings. The Application may be filed pro se (even in forma pauperis), but this rarely prospers. Typically an Application is supported by one or more declarations (under 28 U.S. Code § 1746), at least one of which is by an attorney representing the petitioner in the foreign proceeding who explains the relevance of the discovery sought and how the materials obtained may be used (or "injected") into the foreign proceeding. Often the petitioner also submits a declaration laying out the relevant background facts. In addition, it is best practice for the Application to include the discovery to be propounded in the form of a draft subpoena. Another practice note: the Application or parts of it may be filed under seal under appropriate circumstances.

Ex parte. In a departure from the normal adversary process, Applications are often filed and granted ex-parte. Subpoena recipients facing Courts may require service of the Application upon the subpoena targets

The Court. The Application is filed in U.S. District Court. In districts where applications are common (S.D.N.Y.; S.D.Fla.; N.D. Cal.), the turnaround may be in days or weeks and are often granted when they are facially sufficient. The granting of an Application is vested in the court's discretion. Many courts will refer Applications directly to Magistrate Judges. In re Matter of the B&C Holding GmbH, Civil Action No. 23-365-JWD-EWD, (M.D. La. Nov. 24, 2023) ("A § 1782 application is not among the pretrial matters specifically excluded from direct ruling by a magistrate judge under 28 U.S.C. § 636(b)(1)(A). Additionally, as a § 1782 application is a discovery tool, it does not appear to be a dispositive matter which would require a report and recommendation."). An order granting or denying an Application is immediately appealable.

The (mandatory/statutory) Intel Factors

The Person. The person from whom discovery is sought may be an individual or an organization.

Is found. Courts have interpreted this requirement to mean the limits of personal jurisdiction consistent with due process. Here is a good discussion of the necessary showing for a foreigner who visits or stays in the United States: In re Application of William Laggner, Civil Action No. 23-mc-00074-NYW, at *4-6 (D. Colo. Jan, 11, 2024). If an organization, it is found where the business is incorporated, is headquartered, or where it has a principal place of business.

Civil or criminal. The proceeding may be civil, criminal, admnistrative, or quasi-judicial. Fonseca v. Blumenthal, 620 F.2d 322 (2d Cir. 1980).

A proceeding in a tribunal. IN practice, this means not an arbitration, and not an enforcement agency. Discovery can be used in an arbitration if that use is scondary or ancillary to the acceptable use in the tribunal. Such a secondary use may be conditioned in some way. The proceeding may be existing or be "within reasonable contemplation." A judicial proceeding to enforce a judgment, In re Clerici, 481 F.3d 1324 (11th Cir. 2007), or an arbitral award is a valid proceeding.

For use. The applicant must demonstrate the "practical ability to inject the requested information into the foreign proceeding." An applicant may satisfy the statute's “for use” requirement even if the discovery sought is not necessary to succeed in the foreign proceeding. The discovery need not be sought for the purpose of commencing a foreign proceeding in order to be “for use” in that proceeding, so long as the proceeding is within "reasonable contemplation." A § 1782 applicant satisfies the statute's “for use” requirement by showing that the materials are to be used at some stage of a foreign proceeding. Mees v. Buiter, 793 F.3d 291, 299 (2d Cir. 2015). If the matter is criminal, discovery is available to a defendant or to a complainant who may trigger a criminal action. Denial on the basis of not for use examples: "The burden of showing a use for this testimony in the Singapore proceeding is on DNG. Here, DNG has repeatedly stated that its intended "use" for the proposed U.S. deposition of Mulanaphy would be to assist it in its trial preparation. "Petitioner reiterates its position that a deposition of Mulanaphy would enable DNG to discovery further information in preparation for the trial[.]"). DNG does not argue that the deposition itself would be admissible in the Singapore trial. Nor does it argue that the deposition would be taken in the service of pretrial procedures authorized by Singapore law. On the contrary, although the Singapore courts have procedures for seeking foreign depositions, DNG has not pursued them." In re DNG, Case No. 23 Misc. 435 (PAE), (S.D.N.Y. Jan. 11, 2024).

Receptive. Absent specific directions to the contrary from a foreign forum, the statute's underlying policy should generally prompt district courts to provide some form of discovery assistance, and courts should deny discovery on the basis of a lack of receptiveness only where it is provided with 'authoritative proof that the foreign tribunal would reject evidence' obtained with the aid of Section 1782. In re Atvos Agroindustrial Investimentos S.A., 481 F. Supp. 3d 166, 176-177 (S.D.N.Y. 2020). Countries found to be receptive include England, Venezuela, Ecuador, Colombia, South Korea, Japan, Germany, France, Austria, India, Romania, Hong Kong, Curacao, Mongolia, Singapore, Italy, Spain, Russia, Brazil, Chile, Peru, Mexico, Canada, Ghana, Bahamas, Slovenia, Nigeria, the Cayman Islands, Denmark, Paraguay.

Scope of discovery. The general rule is that discovery under Section 1782 may be obtained under the rules and principles guiding discovery under the Federal Rules of Civil Procedure. See In re Tokyo Dist. Prosecutors Off., Tokyo, Japan, 16 F.3d 1016, 1020 (9th Cir. 1994).This may include the production of documents not physically present in the United States, as lomg as the person from whom discovery is sought has the necessary "possession, custody, or control" over them.

A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege. The applicable privilege is one found under U.S. law, not the law of the jurisdiction in which the discovery is to be used. The person may be an attorney or law firm.

Misc. The court may allow a deposition to be conducted under the rules of the tribunal where the discovery is to be used instead of the default Federal Rules of Civil Procedure. Discovery may be conditioned upon the indemnification by the party seekig discovery of the person from whom discovery is sought if the discosure would lead the person to incur a fine.

Defense. A subpoena target may challenge the sufficiency of the Application itself, move to quash or modify the subpoena, or for a protective order, as under F.R.C.P. 45, or both. In addition, an interested person (for example, an adversary party in the jurisdiction in which the discovery may be used) may intervene to challenge the Application. See In re Saul Klein, No. 23 MISC. 211 (PAE) at *1 (S.D.N.Y. Dec. 21, 2023) ("The Court initially granted, as facially supported, Saul's ex parte application under § 1782 for authority to issue subpoenas duces tecum to the U.S. institutions. Dkt. 6. Now before the Court are two motions to quash those subpoenas. One is from Michael and entities he and Eva own and control (together, “the first movants”). Dkt. 29. The second is from entities owned and controlled by Michael's children, Raphael and Natalie Klein (together, “the second movants”). Dkt. 37. For the reasons that follow, the Court grants both motions and quashes the subpoenas.").

Uses. Section 1782 applications have commonly been used to discover the identity of anonymous or pseudonymous posters; in probate and divorce cases; for business disputes, fraud, embezzlement; in aid of bankruptcy and receiverships; to help enforce arbitral and judicial awards. One uncommon use was to uncover educational records to challenge the eligibility of a presidential candidate.

Examples: In Re: Application of Luis Aron, Case No.: 3:23-mc-00841-AN (D. Or. Jan. 3, 2024). Petitioner states that he is involved in multiple legal proceedings in the Republic of Paraguay related to a dispute between himself and the "Gomez Family" regarding the ownership and finances of Doral, a corporation that is "the exclusive licensee for Adidas in Paraguay." In November 2019, petitioner filed a lawsuit against the Gomez Family in Paraguay, and he is now attempting to enforce a resultant court order granting him access to Doral's books and records. In August 2020, the Gomez Family "knowingly and intentionally filed false criminal charges" against petitioner, and as a result a Paraguayan court issued an "international capture order" against him. Petitioner "recently" commenced a criminal action against the Gomez Family, and in August 2023 a Paraguayan court ordered a raid of Doral's offices in connection with the criminal investigation. Petitioner seeks information from the Adidas Entities that he believes will assist him in the Paraguayan legal proceedings, specifically in determining the period and extent of the Gomez Family's control of Doral, whether the Gomez Family has sought kickbacks, and any representations that the Gomez Family made about petitioner's role in Doral's business affairs.