A 28 U.S.C. § 1782 application on foreign facts nearly always carries a foreign-law declaration. When the respondent answers with its own expert, the applicant expects the court to pick a winner.
Often the court does not. Two district court decisions from 2025 and 2026 and a line of Second Circuit authority explain why, and what the declaration should contain so that it still serves when the court declines to resolve the foreign-law dispute.
The rule against the battle of affidavits
The Second Circuit set the baseline in Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d 1095 (2d Cir. 1995), decided nine years before Intel. The court warned that “it is unwise—as well as in tension with the aims of section 1782—for district judges to try to glean the accepted practices and attitudes of other nations from what are likely to be conflicting and, perhaps, biased interpretations of foreign law.” A district court “should consider only authoritative proof that a foreign tribunal would reject evidence obtained with the aid of section 1782”: a forum country’s “judicial, executive or legislative declarations that specifically address the use of evidence gathered under foreign procedures.”
The Second Circuit repeated the point in 2024. In In re Application of Bonsens.org, 95 F.4th 75 (2d Cir. 2024), the applicant’s argument on the “for use” element rested on competing expert declarations about French law. The court declined the “invitation” to “delve into a ‘battle-by-affidavit of international legal experts’ that is beyond the scope of our review in the § 1782 context,” calling it “antithetical to the ‘twin aims’ of § 1782.” The application failed on a different ground, that the applicant offered “no more than speculation” that the Conseil d’État would consider the argument the discovery was meant to support. The experts were not weighed.
In re Colombia: the court need not decide
In Miami, In re Colombia, No. 1:25-mc-24785 (S.D. Fla. July 15, 2026) shows the rule at work. The applicant obtained an ex parte order on an application supported by a ten-page “statement” from her Colombian attorney. The statement carried no 28 U.S.C. § 1746 formula and said nothing about the Colombian court’s receptivity or about circumvention.
The respondents, her half-siblings and a Florida company they control, moved to vacate and quash on a declaration from a Colombian attorney with 36 years of practice, citing articles 41, 171, and 182 of the General Code of Procedure for the position that evidence abroad must be requested through the Colombian judge. The applicant answered with an 83-page expert affidavit from the attorney who had signed the original statement, now with a § 1746 formula, a qualifications section, and eight articles of the same code, opining that no provision bars a party from obtaining documents abroad on its own. The respondents replied with a second declaration.
The magistrate judge’s report set the two positions side by side and then declined to choose: “The Court need not determine which attorney correctly interprets Colombian law. Regardless of whether Applicant must request the discovery she is seeking through the Colombian court, she can request the discovery through that court when discovery in the Colombian proceedings commences, especially given that the Individual Respondents are parties to those proceedings.” The third Intel factor went against the applicant because she sought discovery “before discovery has begun in those proceedings” and from “the opposing parties . . . and from the corporation that they own and control.” The fourth factor went against her because the subpoenas sought essentially all financial and asset records for ten years. Receptivity went the other way: the respondents accepted that Colombian courts are generally receptive.
The district judge adopted the report “in its entirety,” overruled the objections, and closed the case, writing that the report “appropriately considered the Parties’ divergent representations as to the amenability of Colombian courts to foreign discovery and reached the reasoned conclusion that Caballero can seek foreign discovery through domestic procedures, even if she is not required to do so,” and that “[a] Section 1782 applicant’s attempt to side-step domestic discovery procedures is an appropriate consideration in granting a motion to quash.” Neither judge decided what Colombian law requires.
Zetwerk: neutral on receptivity, decisive on a concession
In Zetwerk India Manufacturing Businesses Private Limited v. Ayr Energy, Inc., No. 1:25-cv-00567 (D. Del. Aug. 13, 2025), the application’s only declaration came from the applicant’s general counsel and said nothing about receptivity or Indian discovery mechanisms. The Indian-law declarations came later, in the letter-brief exchange: the respondent’s Indian counsel said the Bengaluru court was “unlikely to be receptive” before the pending jurisdictional motions were heard and that the Civil Procedure Code lets the court summon third-party documents under Order XVI rule 6; the applicant’s reply declarant said Indian courts are “generally receptive” and that the rule 6 power is “discretionary, not automatic.”
On receptivity, the magistrate judge wrote: “Confronted with nothing more than competing attorney declarations, the court concludes that this factor is neutral.” The third factor, though, turned on what the applicant’s own declarant had said: “In a subsequent declaration, however, Zetwerk acknowledges that the Indian tribunal has discretionary authority to summon documents from third parties.” Zetwerk had identified no effort to seek the material in India, and while it was “not required to exhaust all potential discovery procedures in the Indian Proceeding,” efforts to “‘side-step[ ] less-than-favorable discovery rules by resorting immediately to [Section] 1782 can be a factor in the court’s analysis.’” The application was denied without prejudice.
The district judge overruled the objections on March 4, 2026: § 1782 “contains no requirement that the applicant first seek the desired discovery in the foreign forum,” but the court “can consider ‘a perception that [Petitioner] has “side-stepped” less than favorable discovery rules by resorting immediately to § 1782.’” That order assumed receptivity in the applicant’s favor and did not discuss the declarations.
When the declaration does decide
When one side’s declaration is thorough and the other side has nothing comparable, courts rely on it. In In re Application of Miya Water Projects Netherlands B.V., No. 3:23-mc-00391 (D.P.R. Nov. 3, 2023), the court granted the application ex parte on the strength of Dutch counsel’s account: “Counsel Roessingh provided a thorough statement describing the claims Miya anticipates pursuing in the District Court of Amsterdam, along with the facts and grounds upon which it may do so,” and the court adopted her statement that no Dutch law prohibits the use of evidence collected under § 1782. In In re Application of Amgen Inc., No. 1:23-mc-00258 (D. Del. Sept. 26, 2023), “Amgen has submitted credible sworn declarations to support its assertion that in order to satisfy the pleading standards of Austrian and Slovenian courts, Amgen needs the additional evidence it seeks.”
The same courts discount a declaration that hedges. In In re Banco Mercantil del Norte, S.A. v. Cartograf USA, Inc., 126 F.4th 926 (4th Cir. 2025), the respondent’s Mexican-law opinion “concedes that ‘there is not much judicial precedent regarding this issue,’” was “issued with limited information,” and was “by no means [] a definitive legal opinion”; “the party asserting a foreign privilege bears the burden of establishing that privilege.” In In re O’Keeffe, 646 F. App’x 263 (3d Cir. 2016), the respondent’s Hong Kong-law declaration “is qualitatively different than the type of ‘authoritative proof’ that a statute or regulation might provide” and “simply provides one interpretation of the admissibility of the types of documents and testimony sought.” And in In re Application of Deposit Insurance Agency, No. 1:17-mc-00414 (S.D.N.Y. July 23, 2018), a Russian-law declaration proved the wrong thing: “all this shows is that Russian courts do not permit parties to seek this type of discovery—not that they would reject the discovery if provided from an American court.”
And courts read the declarations closely. In Tofoni v. Synovus Bank, No. 4:25-cv-00313 (M.D. Ga. July 21, 2026), the applicant had already won his petition and moved to use the bank records in Argentine criminal complaints. Both sides filed serial Argentine-law declarations. The respondents’ declarant cited articles 82 and 199 of Argentina’s National Code of Criminal Procedure and the rule that only the court may lift bank secrecy; the applicant’s later declarations cited no article and relied on a report from a prosecutor’s office. “The Court carefully reviewed the declarations and is not convinced that Tofoni met his burden”; his showing “did not establish that Argentine law would permit Tofoni to compel production of a company’s private bank records for the purpose of initiating criminal complaints.” The motion was denied.
What this means for drafting the declaration
- File the complete declaration with the application, not in reply. In In re Colombia the opening statement lacked the § 1746 formula and any treatment of receptivity or circumvention; the 83-page affidavit arrived after the court had a reason to decide the motion without resolving Colombian law.
- State the procedural posture abroad, with dates. Whether the evidentiary phase is open, whether the respondent is a party, what has been requested there and with what result. In re Colombia and Zetwerk found circumvention from posture, not from foreign law.
- Name each foreign mechanism the respondent could invoke, by article, and explain its limit. Never concede a power without explaining why it does not reach this evidence in time. In Zetwerk, the applicant’s own declarant supplied the concession that decided the third factor.
- Answer the opposing declaration article by article. In Tofoni, the respondents’ article-based account of Argentine criminal procedure prevailed over the applicant’s reliance on a prosecutor’s report and on outcomes.
- Do not hedge. A declaration that calls itself preliminary, notes thin precedent, or offers “one interpretation” is discounted, as the respondents’ declarations were in Banco Mercantil and O’Keeffe.
Conclusion
The foreign-law declaration is not written to win a debate the court will avoid. It is written to give the court the facts it will use instead: the stage the foreign proceeding has reached, who is a party, what has been asked for there, and what each foreign mechanism can and cannot reach. A declaration that supplies those facts at the outset holds up when the court declines to choose between experts. The full primer on Section 1782 is at https://jorgeschmidt.com/1782/.