United States: Recent Cases Illustrate Benefits And Pitfalls Of Section 1782 Discovery

Keywords: Section 1782 discovery, foreign discovery policy

Three recent US federal court decisions provide additional insight into the scope of permissible discovery under 28 U.S.C. § 1782. These decisions from the Second and Eleventh Circuits continue to sharpen the boundaries of Section 1782 discovery and should improve predictability for practitioners.

Section 1782 is a vehicle for conducting discovery in the United States for use in a foreign proceeding. The applicable legal framework is well-established. A district court is authorized to grant a Section 1782 request when:

  • The person from whom discovery is sought resides (or is found) in the district,
  • The discovery is for use in a proceeding before a foreign tribunal, and
  • The application is made by a foreign or international tribunal or any interested person.1

Once these threshold elements are met, the district court may, in its discretion, grant discovery after considering the four factors presented in Intel Corp. v. Advanced Micro Devices, Inc.:

First, when the person from whom discovery is sought is a participant in the foreign proceeding ... the need for § 1782(a) aid generally is not as apparent as it ordinarily is when evidence is sought from a nonparticipant in the matter arising abroad ...

Second, a court presented with a § 1782(a) request may take into account the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance ...

[Third], a district court could consider whether the § 1782(a) request conceals an attempt to circumvent foreign proof-gathering limits or other policies of a foreign country or the United States ... [and]

[Fourth], unduly intrusive or burdensome requests may be rejected or trimmed.2

In one recent case, In re Kreke Immobilien KG, the petitioner, Kreke, was in litigation in Germany against Oppenheim and applied to the Southern District of New York for Section 1782 discovery from Oppenheim's parent, Deutsche Bank. Kreke asserted that Deutsche Bank (a non-party to the German case) had control over Oppenheim's documents, all of which were located in Germany.

In its Section 1782 application, Kreke argued that "as a practical matter, German-style discovery is limited to gaining access to documents whose contents are already known to the applicant in great detail"3 and that a US application was the only "conceivable" approach to obtain documents that "generally pertain" to the subject matter of the German case.

Despite finding that Kreke satisfied the threshold statutory requirements, Judge Buchwald concluded that Kreke could not use Section 1782 to obtain documents that are located abroad. Although one other court from the Southern District has found that the location of the documents is, at most, a discretionary factor, Kreke concluded that "the bulk of authority in this Circuit suggests that a § 1782 respondent cannot be compelled to produce documents located abroad."

According to the Kreke court, "Given that this case arose out of conduct that took place in Germany, that the parties are all located in Germany, that all physical documents are in Germany, and that all electronic documents are accessible just as easily from Germany as from Deutsche Bank's offices in New York, the connection to the United States is slight at best and the likelihood of interfering with foreign discovery policy is substantial." By that reasoning, the foreign location of the documents is a "categorical bar" to Section 1782 assistance.

In another case, In re Application of Mare Shipping Inc. and Apostolos Mangouras,4 a party to litigation in Spain served subpoenas under Section 1782 calling for discovery from the Kingdom of Spain's New York-based counsel, Squire Sanders. Judge Castel denied petitioner's motion to compel compliance with the subpoenas. This case raised several interesting issues.

The district court rejected the law firm's argument that the true target of the subpoena was the Kingdom of Spain. This could have deprived the court of subject matter jurisdiction, because Spain enjoys sovereign immunity. Or, it could have meant that one of the threshold elements for Section 1782 was not satisfied, because Spain does not "reside" in the Southern District of New York. As to both points, the court observed that the subpoena was directed only at the law firm, which is not an agency or instrumentality of the Spanish government.

Nonetheless, the motion to compel was denied. Applying the Intel discretionary factors, the court observed that Spain was the ultimate target of the discovery. That was relevant, not because of sovereign immunity or venue, but because Spain was a party to the foreign case. The court also emphasized that the petitioner's failure to seek the materials in the Spanish proceedings, despite ample opportunity to do so, implied an attempt to circumvent Spanish discovery rules.

In a third recent case, the Eleventh Circuit Court of Appeals took the unusual step of revising its own prior decision on a Section 1782 appeal. In Application of Consorcio Ecuatoriano de Telecomunicaciones S.A.,5 the plaintiff had filed a Section 1782 request seeking evidence relating to a foreign shipping contract dispute.

The central issue on appeal was whether the discovery related to a "proceeding in a foreign or international tribunal." The court upheld the district court's ruling that, although no foreign proceeding was yet pending, it was enough that a foreign proceeding was "within reasonable contemplation." In addition, while the court stopped short of deciding whether foreign arbitrations meet the statutory requirements, it noted in dicta that they probably do.

The use of an unfiled proceeding to satisfy Section 1782 is supported by Supreme Court precedent. It is unusual, however, and the court provided a useful example of the evidentiary showing required to demonstrate that a proceeding is within "reasonable contemplation." The applicant stated that its auditor had informed it of potential liability in connection with the shipping dispute. The applicant's legal and compliance director provided a declaration also conveying the results of the audit and expanding further on the potential private civil action available after the likely criminal proceeding.

It is noteworthy that the court approved the use of Section 1782 for pre-suit discovery that exceeds the discovery available under Federal Rule 27. That rule allows pre-suit discovery, but only depositions of adverse parties, if necessary to "perpetuate testimony," and if, among other things, the applicant can show that it plans to bring a suit "but cannot presently bring it or cause it to be brought." Under the Eleventh Circuit's reasoning, however, if the potential litigation is abroad, Section 1782 might allow more discovery with less of a showing.


Given the nature of the Intel factors and the tone of recent decisions, targets of Section 1782 discovery demands should strongly consider eliciting the views of the foreign tribunal on the discovery requests in order to include them in opposition to the request. Although not formally a factor in the Intel analysis, input from the foreign tribunal may serve two functions. First, it can aid a US court that lacks knowledge about foreign discovery rules and about the particular litigation. Second, it can demonstrate to the US court that the Section 1782 application is not merely an end-run around less-generous foreign discovery rules.

While not dramatically altering existing jurisprudence, these three cases illustrate an increasingly clear delineation of the limits of Section 1782. For the targets of Section 1782 discovery demands, these cases represent a welcome acknowledgment that discovery is not limitless, especially in light of last year's Second Circuit ruling that the admissibility of Section 1782 discovery material in the foreign litigation forum is irrelevant to a district court's evaluation of the merits of the application.6 Kreke adds further support for the proposition that Section 1782 cannot be used to obtain documents located outside the United States. These cases also underscore the point that, despite many courts' willingness to entertain cross-border discovery—even when inconsistent with foreign law—in American litigation, they do not view Section 1782 as a tool to export US discovery standards to cases in foreign courts.

Originally published March 17, 2014


1 See Schmidt v. Bernstein Liebhard & Lifshitz, LLP 376 F.3d 79, 83 (2d Cir. 2004).

2 Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004).

3 Kreke, No. 13 Misc. 110 (NRB) (S.D.N.Y. Nov. 8, 2013) at 5.

4 13 Misc. 238 (S.D.N.Y. Oct. 23, 2013).

5 No. 11-12897 (11th Cir. Jan. 10, 2014).

6 See "Section 1782 Discovery: A Back Door for Foreign Litigants" (March 2012) at http://www.mayerbrown.com/Section-1782-Discovery-A-Back-Door-for-Foreign-Litigants-03-30-2012/.

Learn more about our Banking & Finance Litigation and Electronic Discovery & Information Governance practices.

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2014. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.