People and businesses located outside of the United States have a powerful tool to discover information, located in the United States, that may assist them with foreign litigation. More than 150 years ago, Congress authorized federal courts to issue discovery in aid of foreign legal proceedings. Section 1782, as the statute is known today, grants federal judges considerable discretion to direct companies in the United States to produce documents or provide other potentially helpful information to foreign litigants. 28 U.S.C. § 1782. A recent Southern District of Ohio ruling illuminates how judges exercise that considerable discretion when deciding a Section 1782 application.
On June 11, Southern District of Ohio Magistrate Judge Chelsey Vascura denied Zhanel Shayakhmetova's application to obtain discovery from U.S. based Boulder International Investments, LLC (Boulder) for use in a proceeding pending in the United Kingdom. In re Shayakhmetova, No. CV 2:25-MC-12, 2025 WL 1651945 (S.D. Ohio June 11, 2025) (slip copy).
In her application, Shayakhmetova alleged that Boulder, along with nine other defendants in the U.K. proceeding, acted to block Shayakhmetova's attempt to gain title to an inherited share of a partnership left by her father. Id. at *1. Shayakhmetova claimed that the sought discovery is necessary "(1) to quantify her half of the Partnership assets, and (2) to trace those assets." Id.
Although most (approximately four out of five) applications under Section 1782 are granted, denials like those in In re Shayakhmetova underscore the importance of understanding how federal judges exercise their considerable discretion in considering those applications. This bulletin explains the inner workings of Section 1782, including the factors leading to the denial of Shayakhmetova's Section 1782 application in In re Shayakhmetova.
Background
Compared to many foreign courts, U.S. courts allow for broad discovery practices. Federal Rule of Civil Procedure 26, governing the rules of discovery, provides that any party may seek discovery on any nonprivileged matter that is relevant to any party's claim or defense, so long as it is proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). This rule allows for the discovery of categories of documents related to the proceeding, contrasting many foreign court requirements that only specific, named documents may be discovered. Notably, American courts can compel discovery of information that itself may not be admissible as evidence. Given the rules favoring liberal discovery, contested commercial lawsuits in the United States can result in hundreds of thousands of documents produced in discovery. And parties can be entitled to depose witnesses (question them under oath) and interrogate (ask written questions to be answered fully and verified under oath) individuals as well.
Section 1782, derived from statutes dating back to as early as 1855, codified the long-standing practice of federal court cooperation with foreign governments to compel discovery from U.S. persons. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 247 (2004). However, Section 1782 also created a new process for non-governmental foreign persons to obtain discovery from U.S. persons for use in foreign proceedings.
Under the statute, a foreign tribunal may seek discovery of a U.S. person for use in a proceeding in a foreign or international tribunal, either by making a request or by issuing a letter rogatory. Critically, Section 1782 does not only empower a foreign tribunal. Instead, any "interested party" may also seek U.S. discovery for use in a foreign tribunal (as explained further below).
An interested person may obtain an order to seek discovery by submitting an application to the specific federal District Court where the party from whom discovery is sought resides. For a business, the place of residence is usually their headquarters or place of incorporation. See, e.g., In re Path Network, Inc., 703 F.Supp.3d 1046, 1060 (N.D. Cal. Nov. 22, 2023). Applicants usually apply ex parte, without notifying the target of the contemplated discovery. (Notice comes later, as further explained below.)
Furthermore, a foreign proceeding need not be ongoing for an application to be made under Section 1782. Instead, an interested party may also submit an application if there is merely a reasonable contemplation of a foreign proceeding, even if such foreign proceeding has yet to be filed. Intel, 542 U.S. at 258.
Before granting an application, the District Court must apply two sets of factors to determine whether to approve the application. In re Path Network, 703 F.Supp.3d at 1059. Courts refer to the first set of factors as statutory. Id. If an application satisfies the statutory factors, then the Court must consider the second set of factors, the so-called discretionary factors. Id.
Appellate courts evaluate lower-court judgments on both sets of factors for abuse of discretion. In re Naranjo, 768 F.3d 332, 347 (4th Cir. 2014). In other words, each particular federal judge reviewing a 1782 application enjoys considerable discretion in applying his or her judgment. For foreign parties looking to submit an application under Section 1782, sophisticated local counsel can be paramount to successfully navigating the application process.
The Statutory Factors
After receiving an application under § 1782, the district court must first determine whether the applicant has met four statutory requirements: (1) the discovery is sought from a person residing or found in the district of the district court where the application is made; (2) the discovery is "for use" in a proceeding; (3) that proceeding is in a "foreign or international tribunal"; and (4) the applicant either is a foreign or international tribunal or "any interested person." See, e.g., Khrapunov v. Prosyankin, 931 F.3d 922, 925 (9th Cir. 2019).
These requirements are mandatory, and an applicant must satisfy all four criteria for a Section 1782 application to be considered.
The first statutory factor requires that discovery must be sought from a person or entity residing or found in the district in which the application was filed. Federal courts have set forth different requirements for residency based on whether the target of discovery is an individual or a business entity. An individual resides wherever they are domiciled, or where they live and intend to remain. In re Path Network, Inc., 703 F.Supp.3d at 1060.
A business entity (like a corporation) resides in the district of its principal place of business (its headquarters), as well as its place of incorporation. Id. In In re Shayakhmetova, Mag. Judge Vascura identified the business entity as formed under Ohio law and registered in Ohio, meeting the first statutory factor.
The second statutory factor requires that any sought discovery must be for use in a proceeding before a foreign tribunal.
Regarding whether the discovery sought is "for use" in a proceeding, some courts ask whether the discovery is "relevant" to the proceeding and place the burden of demonstrating relevance on the applicant. In re Path Network, 703 F.Supp.3d at 1061. Other courts ask whether "there is a reasonable possibility that the evidence sought will be employed with some advantage or serve some use in the proceeding." In re Newbrook Shipping Corp., 31 F.4th 889, 895 (4th Cir. 2022).
The third statutory factor requires that the relevant proceeding also be before a foreign or international tribunal. While courts do not require the proceeding to be "actually pending," any proposed action must go before a body with governmental authority. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 258 (2004).
Explicitly, the U.S. Supreme Court has interpreted "foreign or international tribunal" as excluding private or governmentally created arbitrations. ZF Auto US, Inc. V. Luxshare, Ltd., 596 U.S. 619, 629-31 (2022). Instead, at least one proceeding where the discovery will be used must be adjudicated by a governmental body. In re B&C Kb Holding GmbH, No. 23-1014, 2024 WL 3170983, at *3 (2d Cir. June 26, 2024).
This does not mean that there is no path to discovery in aid of arbitration from an American non-party to that arbitration. But it does mean that the path to such discovery probably does not run through Section 1782.
The final statutory factor requires that the applicant be an interested person before the foreign tribunal (if not the foreign tribunal itself). The U.S. Supreme Court has defined an interested person as "litigants before foreign . . . tribunals . . . as well as any other person," even one who "merely possess[es] a reasonable interest in obtaining the assistance." Intel Corp., 542 U.S. at 257 (quoting Smit, International Litigation under the United States Code, 65 Colum. L.Rev. 1015, 1027 (1965)).
This relatively broad standard allows many different people or entities to seek discovery under Section 1782. At least some courts explicitly have found that an interested "person" includes business entities, such as corporations. In re Newbrook, 31 F.4th at 895 n.7.
The Discretionary Factors
If the court does find that the applicant meets these statutory requirements, the judge must then apply four discretionary factors, set out by Justice Ginsberg in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004). The Intel factors are:
- whether the person from whom the discovery is sought is a participant in the foreign proceeding;
- 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;
- whether the § 1782 request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States; and
- whether the § 1782 application contains unduly intrusive or burdensome discovery requests.
Intel, 542 U.S. at 264-65. The discretionary factors are subject to judicial discretion, and must be balanced in light of the twin aims of § 1782: to provide efficient assistance to participants in foreign or international litigation, and to encourage foreign countries to provide similar assistance to U.S. courts. Id. at 252.
The first discretionary factor, whether the subject of discovery is a participant in the foreign proceeding, favors the applicant when the subject of discovery is a non-party. Here, foreign tribunals typically have jurisdiction over parties to a proceeding, while non-parties in a foreign country like the U.S. may avoid the jurisdictional reach of a foreign tribunal. In re Shayakhmetova, 2025 WL 1651945 at *3.
This factor weighed against the applicants in In re Shayakhmetova. The party from whom Shayakhmetova sought discovery, Boulder, was a party to the United Kingdom proceeding. So, the Shayakhmetova Court found, the United Kingdom tribunal likely could compel Boulder to produce any necessary information. Id. (Mag. Judge Vascura also questioned the necessity of the sought discovery for the claims brought in the U.K. court. Id.)
The second discretionary factor, which looks at the nature of the foreign tribunal, the character of the foreign proceedings, and the receptivity of the foreign tribunal to assistance from U.S. courts, typically favors the applicant. This factor contains two main subfactors identified by courts: whether the proceeding is or would be in a foreign tribunal, and whether the foreign tribunal would be receptive to the discovery obtained by the § 1782 proceeding. Id.
Regarding whether the proceeding is or would be in a foreign tribunal, Mag. Judge Vascura identified similar characteristics as in the second statutory factor, relying on ZF Auto US's differentiation of governmental bodies and private arbitration. Id. Since the proceeding at issue was in the U.K. high courts, this subfactor favored the applicants.
Second, the receptiveness of the foreign tribunal subfactor only weighs against the applicant when the foreign tribunal has expressly indicated that it does not plan to accept the evidence provided by the Section 1782 proceeding. In re Path Network, 703 F.Supp.3d at 1063.
U.S. courts are split as to what constitutes express indication that a foreign tribunal would not accept the evidence garnered from the Section 1782 proceeding. Some federal courts give judges considerable discretion to determine whether a foreign tribunal would not accept the requested discovery. In re Banco Mercantil del Norte, 126 F.4th at 933. Other federal courts favors the requesting party even more, explicitly placing the burden on the party resisting discovery to prove that the foreign tribunal would not accept the requested discovery. Id.
For Mag. Judge Vascura, the second discretionary factor favored the applicants. The court pointed to the general receptiveness of U.K. courts to discovery obtained abroad, as well as the lack of opposing evidence provided by the party opposing the Section 1782 order as evidence in favor of the applicants. In re Shayakhmetova, 2025 WL 1651945 at *3.
The third discretionary factor, whether the request attempts to circumvent foreign policies regarding discovery, looks to whether the foreign tribunal has strict discovery laws that the applicants are trying to circumvent.
Federal judges look for abuse of U.S. discovery practices, and find against applicants where it is clear that the applicants seek to take advantage of the disparities between U.S. and foreign courts. However, for Maj. Judge Vascura, no blatant attempts at circumvention were present, and she found that the third factor favored the applicants for similar reasons as the second discretionary factor. Id. at *4.
The fourth and final discretionary factor looks to whether the requests for discovery are unduly intrusive or burdensome, weighing against applicants when such undue burdens are present. Typically, a request is unduly intrusive or burdensome when it is not narrowly tailored, requests confidential information, or appears to be a broad fishing expedition for irrelevant information. In re Path Network, 703 F.Supp.3d at 1064.
When deciding this factor, U.S. courts look to the federal rules governing scope of discovery, contained in Federal Rule of Civil Procedure 26(b)(1). Rule 26(b)(1) allows parties to discover any nonprivileged information so long as that information is relevant to any party's claim or defense, and is proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). Federal judges weigh "the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit" when determining if discovery is proportional to the needs of the case. Id.
Here, Mag. Judge Vascura found that the applicant's requests to Boulder went beyond what was relevant and proportional to the needs of the case, as it contained overly broad requests that required disclosure of Boulder's entire ownership and management structure, rather than the targeted areas addressed by the U.K. proceeding's claims. In re Shayakhmetova, 2025 WL 1651945 at *4.
Therefore, Mag. Judge Vascura ruled that the fourth discretionary factor weighed against applicants.
With two factors weighing in favor of applicants and two factors weighing against applicants, Mag. Judge Vascura then considered the application of the factors under the twin aims of § 1782: providing efficient assistance to participants in foreign or international litigation and encouraging foreign countries to provide similar assistance to U.S. courts. Id. at *4.
Based primarily on the evidence discussed in factor four, Mag. Judge Vascura found that a separate proceeding that sought to discover evidence on expansive topics would be both inefficient and duplicative of the U.K. tribunal's efforts; therefore, Mag. Judge Vascura found that the factors weighed against granting the application to domesticate discovery for use in a foreign proceeding under Section 1782. Id.
Conclusion
Though not binding precedent, Mag. Judge Vascura's order denying Shayakhmetova's Section 1782 application provides insight into what matters guide judicial decision making in Section 1782 cases. Many judges seek to avoid creating inefficient proceedings in multiple countries, especially when foreign tribunals already have jurisdiction over the target party to order discovery.
Additionally, judges look to prevent gamesmanship between foreign judicial systems, where parties may try to circumvent the rules of one country to obtain an advantage against a U.S. opponent.
While these insights provide clarity for those looking to seek discovery of a U.S. based person or entity for use in a foreign proceeding, the heterogeneity of the U.S. federal bench still leaves room for unpredictability in deciding § 1782 applications.
As a general rule, American courts allow for liberal and extensive discovery, even from non-parties, as compared to courts abroad. To encourage foreign courts to adopt similar rules, and for other reasons, Congress long has authorized federal courts to order discovery from non-parties in aid of foreign litigation. Companies outside of the United States may take advantage of this authorization to discover information from American companies and natural persons. A company need not have initiated (or be defending against) active litigation in order to seek such discovery. Federal courts could order discovery of information that could inform the decision of whether or not to sue abroad.
Given both technical requirements and the considerable discretion allowed to federal judges, companies and others interested in seeking such discovery would be wise to consult with sophisticated and experienced United States counsel as soon as possible. The most helpful American lawyers will be able to assist not only with the technical details, such as filing an application at the right time in the right court, but also with the interpersonal nuances of local judicial preferences and concerns. Taft's commercial litigators have considerable experience representing both American and foreign companies and individuals in federal and state courts, as well as providing pre-litigation advice and counsel.
*Taft summer associate Bennett McGraw assisted with this law bulletin.
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