Federal statute 28 U.S.C. § 1782 has become one of the most important tools for parties involved in cross-border disputes. It is a federal statute that allows litigants in foreign or international proceedings to obtain U.S.-style discovery from individuals or entities located in the United States. Because foreign proceedings often offer limited access to documents or witness testimony, 28 U.S.C. § 1782 serves as a bridge between legal systems: it imports the power of U.S. discovery into disputes that originate elsewhere.
Jurisdictional Reach and Statutory Requirements
When 28 U.S.C. § 1782 authorizes a court to order discovery, it is referring to people or companies that fall within that court’s reach. That means an individual must live in the district or regularly be present there, or the company must have a genuine operational footprint there such as an office, employees, or continuous business activity. If those connections exist, the court can require the person or entity to produce documents or testimony. If they do not, the court has no authority to compel anything under 28 U.S.C. § 1782. The applicant must be an “interested person” (which almost always includes a litigant) or a foreign tribunal itself. The evidence must be “for use” in a foreign or international proceeding that is either already pending or reasonably contemplated. The target of discovery must also be within the jurisdiction of the court where the application is filed. Once these conditions are met, the court has discretion to grant or deny the request.
Discretionary Factors Courts Consider
Judges look at whether the discovery target is a participant in the foreign proceeding, whether the foreign tribunal is receptive to U.S. judicial assistance, whether the applicant is attempting to bypass foreign rules or restrictions, and whether the request is overly burdensome. These considerations guide courts toward outcomes that respect the structure of the foreign proceeding and promote efficient resolution of the dispute. In practice, courts frequently grant 28 U.S.C. § 1782 applications, sometimes narrowing them but rarely rejecting them outright when statutory prerequisites are met.
Limits on Use in Arbitration
The statute has evolved as international arbitration has grown. For years, parties tried to use 28 U.S.C. § 1782 to obtain discovery for private commercial arbitrations. The Supreme Court has restricted the statute’s reach, holding that it does not extend to private arbitration panels. It remains available, however, for proceedings before governmental or intergovernmental bodies. That distinction matters for investors, corporations, and individuals navigating disputes across borders.
Application and Strategic Use
For someone contemplating whether 28 U.S.C. § 1782 could help them, the key question is whether relevant evidence is located in the United States and whether the foreign forum lacks a mechanism to obtain it effectively. Imagine a business owner litigating a contract dispute in Europe who needs internal emails from a U.S. affiliate of the opposing party. Or an individual pursuing a fraud claim abroad who requires testimony from a U.S. accountant or broker. Or a company facing regulatory proceedings overseas that needs access to records held by a U.S. cloud-storage provider. In each scenario, traditional foreign procedures may be inadequate or slow. Federal statute 28 U.S.C. § 1782 allows the party to file a targeted application in a U.S. district court, obtain a subpoena, and compel the evidence directly under familiar federal discovery standards.
Defense-Side and Early-Stage Advantage
The tool can be equally valuable for defense-side strategists. If a foreign adversary has key witnesses or data in the United States, a 28 U.S.C. § 1782 petition can level the playing field by compelling production that the foreign tribunal could not order on its own. It can also serve as an early discovery mechanism when the foreign proceeding is still in formation. Because “reasonable contemplation” is enough, parties can secure documents before the foreign case fully matures.
Conclusion
In short, 28 U.S.C. § 1782 gives foreign litigants access to the breadth of U.S. discovery when they need evidence located in the United States. It converts a cross-border evidentiary problem into a domestic procedural solution. Businesses, individuals, and counsel engaged in international disputes should treat 28 U.S.C. § 1782 as a strategic option whenever U.S.-based information sits at the center of a foreign claim.
Contribution to this blog by Gianna Smurro.
