U.S. Discovery for Foreign Cases – Section 1782 Petitions

28 U.S.C. § 1782

When critical evidence sits in the United States and the fight is overseas, Section 1782 is one of the most powerful tools available to international litigants. Ford O’Brien Landy LLP has deep experience securing discovery for clients pursuing claims abroad

What Section 1782 Does

28 U.S.C. § 1782 allows any U.S. district court to compel a person or entity found within the district to produce documents, give testimony, or provide other evidence for use in a foreign or international proceeding. The statute reflects a longstanding congressional policy of providing broad assistance to foreign litigants — and has been construed expansively by the Supreme Court and the Second Circuit.

The statute’s reach is significant. A party to litigation in Europe, Asia, or anywhere else can petition a U.S. federal court to subpoena a U.S.-based company, law firm, bank, or individual — even for materials that would be unavailable under the foreign court’s own discovery procedures. The Supreme Court has expressly held that Section 1782 imposes no “foreign discoverability” requirement: a petitioner need not show that the evidence sought would be obtainable abroad. What U.S. discovery offers — broad document requests, third-party subpoenas, deposition testimony — is available to foreign litigants who know how to use it

How It Works

A Section 1782 petition proceeds in two steps.

First, the court determines whether the statute’s jurisdictional requirements are satisfied: the person from whom discovery is sought must reside or be found in the district; the discovery must be for use in a proceeding before a foreign or international tribunal; and the applicant must be an interested person or the tribunal itself. These requirements are construed broadly and are met in most cases.

Second, if those requirements are satisfied, the court exercises its discretion by weighing four factors articulated by the Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004): whether the discovery target is already a participant in the foreign proceeding; the receptivity of the foreign tribunal to U.S. judicial assistance; whether the request is designed to circumvent foreign proof-gathering restrictions; and whether the discovery is unduly intrusive or burdensome. These factors are not applied mechanically, and district courts have broad latitude to tailor discovery orders that serve the statute’s dual goals.

Once a petition is granted, the Federal Rules of Civil Procedure govern. Disputes about privilege, burden, and scope are addressed at that stage — not as a reason to deny the petition in the first place.

A Landmark Second Circuit Victory: In re SBK Art LLC (2d Cir. 2026)

Ford O’Brien Landy LLP recently won a significant Section 1782 victory before the United States Court of Appeals for the Second Circuit — a decision that has already been recognized as an important development in the law.

The Dispute

Our client, SBK Art LLC, held a 41.82% ownership interest in Fortenova Grupa d.d., a major food and retail company headquartered in Croatia. In 2022, SBK became subject to E.U. sanctions — a designation SBK disputed, and was stripped of its equity in Fortenova. SBK challenged the sanctions before the General Court of the European Union, sued for damages in the Malta Civil Court, and anticipated further litigation in the Netherlands.

To build its case in those foreign forums, SBK needed documents and deposition testimony from Akin Gump Strauss Hauer & Feld LLP — the multinational law firm that had served as Fortenova’s lead international counsel and had prepared a key legal opinion that SBK alleged contributed to the EU Council’s sanctions decision. The firm filed several Section 1782 petitions in the Southern District of New York and the Central District of California, including a petition to obtain discovery from Fortenova’s law firm, Akin Gump LLP.

The Opposition

Akin Gump mounted vigorous opposition, arguing that the district court should not authorize discovery from a U.S. law firm when the materials at issue were not discoverable from the client abroad. Akin relied on the Second Circuit’s 2018 decision in Kiobel by Samkalden v. Cravath, Swaine & Moore LLP, contending that Kiobel effectively barred Section 1782 discovery from law firms whenever documents were undiscoverable in the foreign jurisdiction — a categorical rule that would have gutted our client’s petition.

The Result

The Southern District of New York granted SBK’s petition (Judge Engelmayer), granting discovery on three targeted topics. Akin appeal the decision. Robert S. Landy successfully argued the appeal on behalf of SBK.

The Second Circuit affirmed in a published opinion. The court held that Section 1782 imposes no foreign discoverability requirement — including when discovery is sought from a U.S. law firm. Kiobel, the court explained, turned on its own particular facts (chiefly the existence of a stipulated confidentiality order that the district court had improperly modified) and could not be read as establishing a categorical limitation on discovery from law firms. The court reaffirmed that concerns about privilege and burden are properly raised through ordinary discovery mechanisms after a petition is granted — not as a basis to deny the petition outright.

The decision was promptly noted as a significant clarification of Section 1782 practice in the Second Circuit.

In re: Ex Parte Application of SBK ART LLC, No. 25-1563 (2d Cir. Feb. 20, 2026) (Robinson, Merriam, Stein).

What We Do

Ford O’Brien Landy LLP represents petitioners seeking Section 1782 discovery and respondents defending against overreaching applications. Our work in this area includes:

• Drafting and litigating Section 1782 petitions in federal courts.
• Advising foreign litigants, international counsel, and litigation funders on whether and how Section 1782 can be deployed in a given dispute
• Defending U.S.-based law firms, banks, companies, and individuals against Section 1782 subpoenas
• Coordinating U.S. discovery strategy with parallel proceedings in foreign courts and international arbitrations
• Handling privilege reviews and discovery disputes that arise after a petition is granted

We understand both the procedural mechanics of the statute and the strategic considerations that drive its use — and we know the Second Circuit law in this area as well as anyone, having helped make it.

To discuss a potential Section 1782 matter, contact us at fordobrien.com.