If you’re caught up in a legal fight outside the United States, you might think American courts have nothing to do with you. You'd be wrong. Dead wrong. There’s this specific, slightly obscure piece of the US Code called 28 USC Section 1782 that acts like a skeleton key for international litigation. It basically lets anyone involved in a "foreign or international tribunal" tap into the terrifyingly broad discovery powers of the US federal courts.
It’s a bit of a legal cheat code.
Imagine you’re suing a partner in London or Milan. You know they’ve been hiding money or sending incriminating emails through a US-based bank or a tech giant like Google or Apple. Normally, you’d have to wait years for a foreign judge to maybe, possibly, ask for those records. But with Section 1782, you can go straight to a US judge and say, "Hey, I need those documents for my case over there." And because US discovery is way more aggressive than almost anywhere else in the world, you often get stuff that would be totally off-limits in a local court. It’s powerful. It’s controversial. And honestly, it’s currently undergoing a massive identity crisis thanks to the Supreme Court.
The "Discovery" Monster and How It Crossed Borders
In most countries, "discovery" is a polite, limited affair. You get the documents the other side wants to show you. In the US, discovery is more like a forensic colonoscopy. You can demand thousands of emails, internal memos, and depositions under oath. 28 USC Section 1782 was designed to be helpful—the idea was that if US courts help foreign litigants, foreign courts might return the favor. It’s about "comity." That’s just a fancy legal word for "you scratch my back, I’ll scratch yours."
But it didn't stay small. For decades, the requirements to use it were pretty lax. You just needed to show that the person or company you wanted info from was "found" in the district where you filed the application, and that the info was for use in a foreign proceeding. You didn't even have to prove the evidence was "discoverable" under the foreign country’s laws. This led to a gold rush. Lawyers from every corner of the globe started filing 1782 applications in New York, Delaware, and California to bypass their own restrictive local laws.
The ZF Automotive Earthquake
For a long time, the biggest debate was what counted as a "tribunal." Does a private arbitration panel count? If you’re in a contract dispute and an arbitrator in Singapore is handling it, can you use 28 USC Section 1782?
For years, the answer depended on where you asked. The Fourth and Sixth Circuits said yes. The Second and Seventh Circuits said no. It was a mess. Then came the 2022 Supreme Court decision in ZF Automotive US, Inc. v. Luxshare, Ltd. The court basically nuked the broad interpretation. Justice Barrett, writing for a unanimous court, argued that a "tribunal" must be a government-sponsored body exercising governmental authority. Private commercial arbitration? Out. Most treaty-based investor-state arbitrations? Likely out too. This was a massive blow to international business lawyers who used 1782 as a primary tool in high-stakes corporate warfare. But it didn't kill the statute; it just moved the goalposts.
When Can You Actually Use 28 USC Section 1782 Now?
Even after the Supreme Court trimmed its sails, 1782 is still a beast if you’re dealing with actual foreign courts. If you’re in the middle of a criminal investigation in France or a civil lawsuit in Tokyo, the door is wide open.
There are basically four "prima facie" requirements you have to hit:
- The person or entity you’re targeting must "reside or be found" in the district.
- The discovery must be "for use" in a proceeding in a foreign or international tribunal.
- The applicant must be an "interested person."
- The proceeding must be within "reasonable contemplation" (it doesn’t have to be filed yet, but you can't just be fishing).
But even if you check those boxes, the judge doesn't have to give you anything. It's discretionary. This is where the "Intel factors" come in, named after the 2004 case Intel Corp. v. Advanced Micro Devices, Inc. The judge looks at whether the foreign tribunal is receptive to the info, whether the request is an "attempt to circumvent foreign proof-gathering restrictions," and whether the request is "unduly intrusive or burdensome."
It's a "vibe check" for international law.
The "Found" Loophole: Why New York Is Always Busy
One of the weirdest parts of 28 USC Section 1782 is the word "found." What does it mean for a multi-billion dollar bank to be "found" in Manhattan?
In the age of digital data, this gets murky. If a Japanese company has a tiny branch office in New York, can you force them to turn over documents located on a server in Osaka? The courts are split. Some say if the company is "found" there, their global documents are fair game. Others are more protective, arguing that the discovery should only cover stuff actually related to the US presence.
This is why you see so many 1782 filings against banks. If money moved through the SWIFT system or a correspondent account in New York, that’s often enough of a hook to get a subpoena. It turns the US financial system into a giant vacuum for global evidence.
Real World Chaos: The Chevron-Ecuador Saga
You can't talk about 28 USC Section 1782 without mentioning the absolute circus that was the Chevron litigation in Ecuador. It’s the poster child for how this law can change the trajectory of a multi-billion dollar dispute.
Chevron used 1782 applications to get outtakes from a documentary film called Crude, which showed the plaintiffs' lawyers and experts in some... let's say "unflattering" moments. They also used it to get the personal diaries and hard drives of the environmental experts. That evidence, gathered in the US, was then used to argue that the $18 billion judgment against Chevron in Ecuador was obtained through fraud and racketeering.
Without 1782, Chevron might have been stuck paying that $18 billion. Instead, they flipped the script. It showed the world that 1782 isn't just for finding bank accounts—it's for finding the "smoking gun" that your opponent thought was buried safely in another hemisphere.
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The Strategy: How to Actually Get What You Want
If you're thinking about filing one of these, or if you’ve just been served with one, don't panic. But move fast.
First, understand that the "for use" requirement is being interpreted strictly. You can't just say "I might need this." You need to show how the specific documents will be used as evidence in the foreign court. If the foreign judge has already said "I don't want to see any more documents," your 1782 application is dead on arrival.
Second, the "burden" argument is your best friend if you're the one being subpoenaed. US judges hate overbroad requests. If a foreign litigant asks for "all communications regarding X," you can often get that narrowed down to a very specific set of keywords and dates.
Third, watch out for the "extra-territorial" reach. Some circuits are getting colder toward the idea of using 1782 to reach documents stored entirely outside the US. If you can't prove the data is sitting on a server in Virginia or California, you might be out of luck in certain jurisdictions.
Actionable Steps for Navigating 1782
If you are involved in a foreign dispute and think there is relevant evidence in the United States, here is how you handle it:
1. Identify the US "Nexus" Early.
Don't wait until the trial starts. Figure out which US-based entities touched the transaction. Is it a bank? A cloud provider? A former employee now living in Florida? You need a specific target "found" in a specific US judicial district.
2. Audit Your Foreign "Receptivity."
Check if the judge in your foreign case is actually going to allow the evidence. If the foreign court has a rule explicitly forbidding "outside" discovery, the US judge will likely deny your 1782 request. Get an affidavit from a local expert in that country to prove the evidence will be welcomed.
3. Hire Local Counsel in the US District.
A 1782 application is a federal lawsuit. You need someone who knows the local rules of the specific district court where you’re filing. The rules in the Southern District of New York (SDNY) are a different beast than the Northern District of California.
4. Prepare for the "Mirror" Defense.
If you sue someone using 1782, expect them to try and do the same to you. It’s a two-way street. Once you've opened the door to US discovery, you might find yourself having to hand over your own internal documents that would have stayed private under your home country's laws.
5. Narrow the Scope.
Judges are increasingly annoyed by "fishing expeditions." Instead of asking for everything, ask for the three things that actually prove your case. A surgical strike is much more likely to be granted than a carpet-bombing approach.
The landscape of 28 USC Section 1782 is shifting. The Supreme Court's move to exclude private arbitration has narrowed its reach, but for traditional litigation, it remains the most powerful tool in the international lawyer’s belt. It’s the bridge between the relatively quiet courtrooms of Europe and Asia and the high-octane, document-heavy world of the American legal system. Use it wisely, or get ready to defend against it.