By Jorge Schmidt, Legal Schmidt PLLC · Published August 6, 2026
28 U.S.C. § 1782 does not require a foreign proceeding to be pending when the application is filed. But the statute does require that the discovery be "for use" in a proceeding before a foreign tribunal, and when no proceeding exists yet, that requirement has teeth: the applicant must show that the planned case is within "reasonable contemplation." Too vague, and the application fails at the statutory threshold. Concrete enough, and the court’s discretion opens.
Two decisions from the Southern District of New York, issued one day apart in July 2026, show both sides of that line. In In re Application of Victor Drake Hanna, No. 1:25-mc-00225 (S.D.N.Y. July 28, 2026), the court denied an application because the applicant never showed that his contemplated English proceeding was more than an intention. In Alerte Congolaise pour l’Environnement et les Droits de l’Homme v. Symbion Power LLC, No. 1:25-mc-00480 (S.D.N.Y. July 27, 2026), the court granted discovery for a contemplated administrative action in the Democratic Republic of the Congo because the applicants documented, step by step, that the case was really coming. Read together, the two orders are a practical checklist for foreign counsel who need US discovery before the home proceeding begins.
A Section 1782 applicant must satisfy three statutory elements: "(1) the person from whom discovery is sought resides (or is found) in the district of the district court to which the application is made, (2) the discovery is for use in a foreign proceeding before a foreign [or international] tribunal, and (3) the application is made by a foreign or international tribunal or any interested person." Fed. Republic of Nigeria v. VR Advisory Servs., Ltd., 27 F.4th 136, 148 (2d Cir. 2022). Only if all three are met may the court exercise its discretion under Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004). The Intel factors never rescue an application that fails the statute.
On July 28, 2026, Judge Ronnie Abrams adopted the report and recommendation of Magistrate Judge Valerie Figueredo and denied Victor Drake Hanna’s petition. Hanna sought a subpoena to the law firm Dechert LLP for documents he intended to use in a contemplated civil proceeding in England against Neil Gerrard. He satisfied two of the three statutory elements: Dechert is found in the Southern District of New York, and Hanna qualified as an interested person. He failed the third, "for use."
Because no English proceeding had been commenced, Hanna had to make an "objective showing that the planned proceedings are within reasonable contemplation." Subjective intent is not enough. His application failed because he did "not identify specific claims he intends to bring in England" and did not "offer a specific legal theory or theories under which he intends to bring those claims." Without those details, the court could not find that the proceeding was more than a possibility.
The procedural history sharpens the lesson. An initial report recommended denial on October 27, 2025. Rather than object, Hanna filed an amended application on February 14, 2026. A second report again recommended denial; Hanna filed no objection; and the district court, reviewing only for clear error, adopted it. The court never reached the Intel factors, and it decided nothing about privilege or work product. The application died on the statute.
One day earlier, on July 27, 2026, Judge Paul A. Engelmayer granted a Section 1782 application brought by two DRC-based nonprofits seeking discovery from Symbion Power LLC for use in a contemplated administrative lawsuit in the Democratic Republic of the Congo challenging gas block auction awards. The grant came with conditions, discussed below: the requests were narrowed and a protective order imposed. But the applicants cleared the reasonable-contemplation threshold with room to spare.
The court restated the Second Circuit’s standard: reasonable contemplation requires more than "subjective intent"; the applicant must supply "objective indicium that the action is being contemplated" at the time of filing. Certain Funds, Accts., and/or Inv. Vehicles v. KPMG, L.L.P., 798 F.3d 113, 123–24 (2d Cir. 2015). The lawsuit need not be pending or even imminent. There is no exact formula, but there must be "some concrete basis from which [a court] can determine that the contemplated proceeding is more than just a twinkle in counsel’s eye."
The applicants met that standard with specific, verifiable preparation. They identified the legal arguments they intend to make, the evidence they envision offering, the tribunal where the case would be brought, and their counsel. They demonstrated standing to sue under Congolese law. And they had written to and met with Congolese authorities to acquire the official decrees allocating the gas blocks and the contracts they seek to cancel, a necessary predicate to filing the administrative complaint. That record of preparation is what separated their application from Hanna’s stated intention.
The first Intel factor asks whether the respondent is a participant in the foreign proceeding. Symbion argued that it had an interest in the contemplated DRC action and that its local affiliate might be drawn into it. The court held that an interest in the outcome does not make a respondent a participant, quoting the rule that "the mere possibility that a third party may ultimately be named in the litigation does not justify denying a third-party subpoena" (In re Hansainvest Hanseatische Inv.-GmbH, 364 F. Supp. 3d 243, 250 (S.D.N.Y. 2018)).
Section 1782 permits discovery of documents located outside the United States so long as they are within the subpoenaed party’s possession, custody, or control. In re del Valle Ruiz, 939 F.3d 520, 533 (2d Cir. 2019). That includes documents a US respondent has the "practical ability" to obtain from a foreign affiliate. Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 138 (2d Cir. 2007). Foreign counsel should not assume that a document’s location abroad puts it beyond a Section 1782 subpoena.
On the third Intel factor, Symbion argued that the DRC has no mechanism for pre-filing discovery. The court held that the absence of a pre-filing discovery mechanism is a procedural rule about timing, not a "proof-gathering restriction," and so does not bar the application. See Mees v. Buiter, 793 F.3d 291, 303 n.20 (2d Cir. 2015).
On the fourth factor, the court applied the Second Circuit’s instruction that when a request is overbroad, the court should ordinarily consider a closely tailored discovery order or a protective order before denying the application outright. The applicants got their discovery, trimmed and subject to a protective order.
The gap between Hanna and Alerte Congolaise is the gap between intention and preparation. Before filing a pre-suit Section 1782 application, an applicant should be able to show:
The line between these two cases is not wide, but it is bright. An applicant who documents objective preparation for a specific foreign case will find US courts ready to assist before that case is filed. An applicant who offers intention alone will not clear the statute. For the full framework — the statutory elements, the Intel factors, and how courts apply them — see the complete primer: A Practical Guide to Bringing and Defending Section 1782 Applications.