By Jorge Schmidt, Legal Schmidt PLLC · Published June 29, 2026
Section 1782 is one of the most powerful tools available to a party gathering evidence for a foreign proceeding: it lets a US district court compel testimony and documents from a person in the United States. But its usefulness turns on a threshold question that is easy to overlook — where is the target "found"? The federal courts of appeals are divided on the answer. The Second Circuit reads "found" to track the limits of personal jurisdiction; the Fourth Circuit confines it to physical presence. The result is that the same respondent may be reachable in one circuit and beyond the statute's reach in another, and the choice of forum can decide the case before the merits are ever argued.
Section 1782(a) authorizes the district court "of the district in which a person resides or is found" to order that person to give testimony or produce documents for use in a proceeding before a foreign or international tribunal. The language sets up two distinct gates. The first is the statutory threshold: the applicant must show, among other things, that the target resides or is found in the district. If the target is not located there, the court has no authority to act, and the discretionary analysis never begins.
The second gate is discretion. Even when the threshold is met, the court decides whether to grant relief under the framework the Supreme Court set out in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004). Intel identified four non-exclusive factors: whether the person from whom discovery is sought is a participant in the foreign proceeding (if so, the foreign tribunal can usually order production itself, and the need for Section 1782 aid is less apparent; nonparticipants are often beyond that tribunal's reach); the nature of the foreign tribunal and its receptivity to US federal-court assistance; whether the request conceals an attempt to circumvent foreign proof-gathering restrictions; and whether the request is unduly intrusive or burdensome. Intel also held that there is no requirement that the evidence be discoverable under the law governing the foreign proceeding, and that the foreign proceeding need only be in "reasonable contemplation," not pending or imminent. The split discussed here concerns only the first gate — but that gate is dispositive when it is not cleared.
The Second Circuit has read "found" to favor access to evidence. In Edelman v. Taittinger, 295 F.3d 171 (2d Cir. 2002), the court held that a person served with a subpoena while physically present in the district is "found" there for purposes of Section 1782 — the familiar concept of tag jurisdiction. A person who lives and works abroad is not beyond the statute simply because he was not in the district when the judge signed the order. The court reasoned that the Federal Rules already guard against abuse: Rule 45 and Rule 26, including the 100-mile limit for nonparty witnesses, protect against burdensome or oppressive discovery, so the statute need not be read to add still more protection.
The court extended that logic in In re del Valle Ruiz, 939 F.3d 520 (2d Cir. 2019). It held that the statutory scope of "found" "extends to the limits of personal jurisdiction consistent with due process" — meaning general or specific personal jurisdiction will satisfy the threshold. For a nonparty respondent, specific jurisdiction exists where the discovery material sought "proximately resulted from the respondent's forum contacts"; where the respondent's contacts with the forum are broader, a but-for link between those contacts and the evidence is enough. In effect, the Section 1782 threshold and the constitutional test for personal jurisdiction become coextensive.
del Valle Ruiz also addressed evidence stored overseas. The court held that there is no per se bar to the extraterritorial application of Section 1782; a court may, in its discretion, order discovery of documents located abroad. The location of the evidence is a discretionary consideration, not a categorical limit. Taken together, these holdings let an applicant reach an entity with meaningful US contacts even when the documents themselves sit outside the country.
The Fourth Circuit went the other way. In Eli Lilly & Co. v. Novartis Pharma AG, 37 F.4th 160 (4th Cir. 2022), the court held that a corporation is "found" in a district only where it is physically present by its officers and agents carrying on the corporation's business — a category that includes a place where it keeps agents or has designated someone to receive service of process, but not every place personal jurisdiction might reach. "Found," the court held, is not coextensive with the International Shoe personal-jurisdiction standard.
The Fourth Circuit expressly declined to follow del Valle Ruiz. It reasoned that "found" carries an established meaning tied to physical presence, and that Congress did not import the modern personal-jurisdiction standard when it chose that word. On that reading, a corporation is "found" where it actually operates through its people, not wherever it could be sued. The court added a discretionary holding for good measure: it affirmed the denial of discovery on the Intel factors as well, noting that the requested materials appeared to be located abroad and that the request was unduly burdensome. The threshold and the discretion pointed the same way.
The disagreement is not academic. The same respondent can be reachable under Section 1782 in the Second Circuit yet beyond reach in the Fourth. A multinational with substantial business contacts in a district — but no office, agent, or physical foothold there — may be "found" under del Valle Ruiz and not "found" under Eli Lilly. For counsel choosing where to file, that turns forum selection into a merits decision.
The split also underscores that clearing the threshold is only the first step. Intel discretion still applies. Even in the Second Circuit, where "found" is easier to satisfy, a court can deny a request that is burdensome or that looks like an end-run around foreign restrictions, and the location of the evidence remains a discretionary factor. An applicant therefore has to win both gates: establish that the target is "found," then persuade the court to exercise its discretion to order the discovery.
Assess "found" before you file. For an applicant, the first task is to identify a district where the target is "found" under the rule that governs there. In the Second Circuit, that can mean personal-jurisdiction contacts: show that the target has sufficient forum contacts to support general or specific jurisdiction, and, for a nonparty, that the evidence sought proximately resulted from those contacts. In the Fourth Circuit and other physical-presence courts, the applicant must point to something tangible — offices, agents, or a representative carrying on the company's business in the district — which may mean directing the subpoena at a US subsidiary or branch rather than the foreign parent.
For a target, the threshold is a real defense, not a formality. In a physical-presence circuit, the absence of offices or agents in the district is a strong basis to defeat the application at the outset, and it should be raised early. Where del Valle Ruiz governs and the threshold is harder to contest, the better ground is discretion: argue that the request is unduly burdensome, that the evidence sits abroad, or that the target is a participant in the foreign proceeding and the evidence can be obtained there.
Both sides should keep the request proportionate. The Intel factors put burden and intrusiveness squarely in play, so an applicant should tailor the demand to the foreign proceeding's genuine needs and avoid a fishing expedition, while a target should be ready to document the cost and breadth of compliance. A narrow, well-anchored request is the one most likely to clear both gates.
Section 1782 remains a formidable instrument for cross-border litigation, but its reach depends on a question that is decided differently from one circuit to the next. The Second Circuit ties "found" to personal jurisdiction and casts a wide net; the Fourth Circuit demands physical presence and casts a narrow one. Until the Supreme Court resolves the conflict, the practical lesson is constant: map the target's US footprint, match it to the standard the chosen circuit applies, and frame a request proportionate enough to survive the discretion that follows. For the full framework and strategy, see A Practical Guide to Bringing and Defending Section 1782 Applications.