By Jorge Schmidt, Legal Schmidt PLLC · Published June 28, 2026
GlaxoSmithKline asked a U.S. court for discovery from Moderna and Pfizer to use in European patent litigation before the Unified Patent Court. It met every statutory requirement of 28 U.S.C. § 1782 — and still lost. In two Reports and Recommendations, a magistrate judge recommended quashing GSK's subpoenas on the discretionary Intel factors. The lesson for cross-border counsel is blunt: clearing the statute is the easy part; § 1782 applications are won and lost on discretion.
The two recommendations — In re Application of GlaxoSmithKline Biologicals SA, No. 26-cv-91027 (D. Mass. June 5, 2026) (the Moderna subpoenas) and No. 26-cv-91030 (D. Mass. May 29, 2026) (the Pfizer subpoena) — grew out of the mRNA vaccine patent wars. GSK is pursuing Moderna and Pfizer in the UPC's Hague Local Division, alleging that their mRNA vaccines infringe GSK's European patents on lipid-particle RNA delivery. To support those foreign cases, GSK obtained an ex parte § 1782 order in January 2026 and subpoenaed documents the companies had produced in the separate, now-stayed Moderna v. Pfizer patent case in the same court. Both companies moved to vacate and quash. Because these are magistrate recommendations, the district judge will decide whether to adopt them.
Section 1782 lets a U.S. district court order a person who resides or is found in the district to give discovery for use before a foreign or international tribunal. The analysis runs in two steps. First, the applicant must clear four statutory requirements: the target resides or is found in the district; the discovery is for use in a foreign proceeding; the application comes from a foreign tribunal or an interested person; and the material is not protected by a legally applicable privilege. Second, even when the statute is satisfied, the court decides whether to grant discovery as a matter of discretion, weighing the four factors from Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004). GSK cleared all four statutory requirements against both Moderna and Pfizer. Every fight that mattered then moved to discretion — and that is where GSK lost.
Defendants often argue that the foreign court will never accept the evidence, so the discovery is not really “for use” abroad. The court rejected that move. Whether a party seeks discovery for use in a foreign proceeding and whether the foreign tribunal will actually admit it are two different questions. The first is the statutory threshold, and it is low; the second belongs to the Intel receptivity analysis. GSK's pending UPC cases satisfied “for use,” even though the UPC might later refuse the exhibits. For applicants, the point is freeing: you need not prove admissibility abroad to open the § 1782 door. For respondents, it means the receptivity fight belongs to discretion, not the statute.
Moderna argued that producing the documents would breach the protective order in the separate U.S. patent case, so the material was shielded by a “legally applicable privilege.” The court disagreed at the statutory stage. A confidentiality interest created by a protective order is not the kind of legal privilege — attorney-client or work product — that § 1782's fourth statutory requirement contemplates. That distinction cuts both ways. Because confidentiality is not a statutory privilege, it cannot defeat the application at step one; but it returns with force at step two, where the burden of honoring a protective order and third-party confidentiality obligations weighs against discovery under Intel factor four.
The first Intel factor asks whether the discovery target is a participant in the foreign proceeding. When it is, the foreign tribunal can usually order that party to produce the evidence itself, so the need for § 1782 aid is weaker. GSK was suing Moderna and Pfizer in the UPC and then asked a U.S. court to extract documents from those same opponents. The court found the factor cut against GSK as to the entities that were UPC parties: those documents sat within the foreign tribunal's reach. One wrinkle helped GSK. Moderna US, Inc. was not a party to the UPC actions, and a non-party affiliate is treated as a separate entity outside the tribunal's reach — so for that target the factor favored GSK. The practical signal: aiming § 1782 at your foreign adversary invites a hard fight on factor one, while a U.S.-based non-party affiliate is a stronger target.
The second factor — the foreign tribunal's receptivity to U.S. assistance — proved decisive. U.S. courts, including this one, have often granted § 1782 discovery for UPC cases. But general receptivity is not receptivity in the case at hand. The UPC is front-loaded and aims to finish in about a year; GSK's requests arrived late, long after the European cases began. More damaging, the UPC had already turned GSK away. In the Moderna matter, the UPC rejected a similar GSK request as “abusive and disproportionate” and held that GSK's stated aim — to show that its opponent was taking contradictory positions across cases — was not a legitimate basis for access. The magistrate judge treated that ruling as authoritative proof of non-receptivity. In the Pfizer matter, the court read the UPC's DISH decision the same way: a party's differing view on a similar claim elsewhere is not admissible interpretive material, and facts drawn from U.S. proceedings cannot be introduced late without explaining the delay. Receptivity, in short, turns on timing and procedural fit, not just on whether the foreign forum tolerates § 1782 in the abstract.
The third factor asks whether the request hides an attempt to circumvent foreign proof-gathering limits. Here GSK prevailed in both cases. There is no rule that an applicant must first try the foreign tribunal's own procedures, and § 1782 carries no foreign-discoverability requirement. Choosing U.S. discovery because it reaches more than the foreign forum allows is legitimate strategy, not bad faith. This is the reassuring half of the decisions: a litigant may use § 1782 to obtain what the foreign court's narrower rules would not, so long as it is not maneuvering to undermine that court.
The fourth factor asks whether the request is unduly intrusive or burdensome. GSK sought nine categories of documents drawn from the record of the separate U.S. patent case — a different set of patents and a different factual dispute. The court found the breadth unjustified. The requests triggered protective-order and third-party confidentiality obligations, and GSK was vague about what it actually needed, conceding it might ultimately use only one or a small number of exhibits. That gap between a sweeping demand and a thin, shifting justification made the burden undue. Notably, in the Pfizer matter the court refused to narrow the subpoena itself. Although Intel lets a court trim an overbroad request rather than deny it, the judge declined: GSK had not made clear what it wanted, and with two other factors already against it, there was nothing worth salvaging.
Several lessons follow for anyone bringing or defending § 1782 applications, especially for UPC and other foreign proceedings.
Clearing the statute is not the win. Build the discretionary case from the first filing; the Intel factors decide most applications.
Think hard before targeting your foreign opponent. Discovery aimed at a party already before the foreign tribunal faces headwinds on factor one. Where possible, target a U.S.-based non-party — including a non-party affiliate — instead.
Respect the foreign court's receptivity, and file early. If the foreign tribunal has already rejected a similar request, a U.S. court is unlikely to override it. In fast, front-loaded forums like the UPC, a late request is a vulnerable one.
Define the use with precision. Vague claims of future relevance invite an undue-burden finding. Tie each category of documents to a concrete need, and do not assume a court will rescue an overbroad request by trimming it.
Remember what these decisions are. They are magistrate recommendations, not final orders; the district judge may adopt, modify, or reject them. Even so, they map how courts now weigh § 1782 discretion against foreign opponents and late filings — a map worth following.
Section 1782 remains one of the most powerful tools in cross-border litigation, but its discretion is where cases are decided. A clean statutory showing opens the door; the Intel factors determine whether you walk through it. Jorge Schmidt (Legal Schmidt PLLC, Miami) advises foreign counsel and litigants on bringing and defending Section 1782 applications. For the full framework and strategy, see A Practical Guide to Bringing and Defending Section 1782 Applications.