By Jorge Schmidt, Legal Schmidt PLLC · Published June 21, 2026
A foreign litigant recently ran into a familiar wall in U.S. discovery practice. The litigant, a foreign real-estate investment vehicle, located the U.S. arm of a global real-estate firm and asked a U.S. court to order that U.S. company to hand over files held by its foreign affiliate. The court said no. The litigant tried again with a renewed petition. The court said no again.
The case, In re Ex Parte Application of Tour des Finances NV GVBF, No. 1:26-mc-00213, 2026 WL 1724065 (S.D.N.Y. June 15, 2026), is a sharp reminder of the most underrated requirement in 28 U.S.C. § 1782 practice. It is not the discretionary Intel factors. It is not the definition of a foreign tribunal. It is possession, custody, or control. If a petitioner cannot show that the respondent holds the documents or has the legal right to obtain them, the analysis ends there, and the rest of the statute never comes into play.
Section 1782 lets a party to a foreign proceeding — or any "interested person" — ask a U.S. federal district court to order a person "found" in the district to produce documents or give testimony "for use" before a foreign or international tribunal. Three statutory requirements must be met: the person from whom discovery is sought must reside or be found in the district; the material must be "for use" in a proceeding before a foreign or international tribunal; and the application must be made by that tribunal or by an "interested person," a category that includes the parties to the foreign case.
The framework comes from the Supreme Court's decision in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004). The foreign proceeding need not be pending or imminent; it need only be "within reasonable contemplation." And even when the three statutory requirements are met, the district court keeps broad discretion to grant or deny relief, guided by four Intel factors: whether the person from whom discovery is sought is a participant in the foreign proceeding; the nature of the foreign tribunal and its receptivity to U.S. judicial assistance; whether the request conceals an attempt to circumvent foreign proof-gathering restrictions; and whether the request is unduly intrusive or burdensome.
Most commentary fixes on those discretionary factors. The Tour des Finances decision is a reminder that a petition can fail well before a court ever reaches them.
Section 1782(a) provides that documents produced under its authority are produced "in accordance with the Federal Rules of Civil Procedure." That single phrase imports the ordinary discovery rules, and with them a hard limit: a respondent can be compelled to produce only documents within its "possession, custody, or control." Control is a flexible idea. It does not require that the respondent physically hold the papers. It requires "a practical ability" or "legal right to obtain" the material.
The burden of proving control sits squarely on the petitioner. As one court put it, "The party seeking discovery has the burden of showing that the other party has control over the material sought and, if they fail to do so, the court's § 1782 analysis need go no further." That is a threshold, not a balancing test. No amount of argument about the importance of the foreign proceeding can substitute for a showing that the named respondent actually controls the documents.
The petitioner, Tour des Finances NV GVBF ("TDF"), sought a subpoena to PIMCO Prime Real Estate LLC ("PIMCO US"). But the documents it wanted were held by three custodians employed by PIMCO Prime Real Estate GmbH ("PIMCO Europe") — a corporate affiliate of PIMCO US, but an otherwise distinct business entity. The records concerned a disputed valuation and a transaction at issue in the foreign proceeding. Critically, the three custodians do not work with the investment teams that work for PIMCO US, the respondent actually named in the subpoena.
TDF filed its first petition on May 7, 2026. At a hearing on May 12, Judge Denise L. Cote denied it, holding that TDF had not shown PIMCO US had possession, custody, or control of the documents, and treating control as a question distinct from the discretionary issue of undue burden. Because the control requirement was not met, the court did not need to reach the Intel factors at all. TDF then filed a renewed petition. On June 15, 2026, Judge Analisa Torres denied that one too: "The Court denies the application because TDF has not met its burden to show that PIMCO US exercises possession, custody, or control over the requested documents." Offered the chance, TDF could point to no authority where an American affiliate had been found to control a foreign affiliate's documents for production under the Federal Rules. As Judge Cote had observed, there was no case in which "one corporate affiliate in America has been required under . . . the Federal Rules of Civil Procedure, Rule 34 and Rule 45, to produce the documents of a foreign affiliate when both affiliates are separately incorporated."
Petitioners often reach for a line of Second Circuit authority that, at first glance, looks like a way around the control problem. In its recent decision in SBK, the court held that a district court "is not precluded from issuing an order under [§] 1782 for discovery from a law firm seeking materials connected with its representation of a foreign client solely because the materials sought are undiscoverable from the client abroad." The related decision is Kiobel by Samkalden v. Cravath, Swaine & Moore LLP, 895 F.3d 238 (2d Cir. 2018).
These are easily misread as allowing discovery from any entity with some loose connection to a foreign matter. They do not. In SBK, there was no dispute that the law firm had actual access to the documents. The court was explicit that its holding "does not do away with the requirement that the documents be in the target's possession or control." Once § 1782's statutory prerequisites are satisfied, the normal Rule 34 and Rule 45 discovery rules apply. The law-firm cases are access cases. They confirm that a U.S. entity can be made to produce documents it actually holds, even when those documents are beyond reach in the foreign forum. They do not let a petitioner reach into a separate company's files simply because the two companies share a brand or a corporate parent.
TDF also tried a procedural workaround. It asked to take a Rule 30(b)(6) deposition of PIMCO US — not to obtain the documents, but to find out how much access PIMCO US had to PIMCO Europe's files in the first place. The court rejected the move. Discovery sought solely to determine the extent of the respondent's potential access to an affiliate's documents is not, the court held, "for use" in a foreign proceeding — itself a statutory requirement for § 1782 relief. The request rested on "little more than speculation," and a deposition on that basis would be unduly burdensome under the fourth Intel factor. The lesson is blunt: you cannot use § 1782 to build the very control record the statute requires you to bring with you. Control must be established before the petition is filed, not manufactured through it.
Finally, TDF argued that the court was inventing a hurdle. Relying on the Second Circuit's Banoka decision, it contended that a court "abuses its discretion when it imposes strict requirements related to [the Intel factors] that go beyond limitations found directly within the statute." The court was unmoved. The possession, custody, or control requirement, it explained, "comes directly from § 1782's text, which incorporates by reference the Federal Rules of Civil Procedure." Control is therefore not a discretionary add-on a court chooses to impose; it is a statutory mandate. Banoka itself had affirmed a § 1782 denial in part because the request sought a foreign affiliate's documents — underscoring that control applies with full force in cross-border disputes.
For foreign counsel and cross-border litigators weighing a § 1782 application, Tour des Finances carries several concrete lessons:
Section 1782 remains one of the most powerful tools available for reaching U.S.-based evidence in aid of a foreign case. But its power runs through the Federal Rules of Civil Procedure, and the requirement of possession, custody, or control is a gate every petitioner must pass before a court will even weigh the discretionary factors. Tour des Finances is a reminder that the gate is real, and that the work of clearing it — identifying the right respondent and proving control with evidence — belongs at the front of the application, not the end.
Jorge Schmidt (Legal Schmidt PLLC, Miami) advises foreign counsel and litigants on bringing and defending Section 1782 applications. For the full framework, see A Practical Guide to Bringing and Defending Section 1782 Applications.