This page explains United States federal law on court-ordered discovery for use in foreign and international proceedings under 28 U.S.C. 1782, as interpreted by the Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc. (2004) and ZF Automotive US, Inc. v. Luxshare, Ltd. (2022). KOR Law LLP's international arbitration practice handles cross-border commercial disputes involving foreign counterparties, award enforcement under the New York Convention, and investment treaty disputes.
What does the statute allow?
The district court "of the district in which a person resides or is found" may order that person to give testimony or a statement or to produce a document or other thing "for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation" (28 U.S.C. 1782(a)). The order may be made on a letter rogatory or request from the tribunal, or on the application of "any interested person." The court may prescribe foreign procedure; otherwise the Federal Rules of Civil Procedure apply. No one can be compelled to give evidence "in violation of any legally applicable privilege," and the statute does not stop anyone from providing evidence voluntarily (1782(a), (b)).
The power is discretionary. In Intel, the Court held that the statute "authorizes, but does not require" a district court to provide discovery aid, and the Court in ZF noted, citing Intel, that a party may obtain discovery even before a foreign proceeding has started.
Which proceedings qualify after ZF Automotive?
In ZF Automotive, the Supreme Court held that "only a governmental or intergovernmental adjudicative body constitutes a 'foreign or international tribunal'" under Section 1782. It rejected discovery in two arbitrations: a commercial arbitration before a panel under the rules of the German Institution of Arbitration (DIS), and an ad hoc arbitration under UNCITRAL rules that a Russian investor's assignee brought against Lithuania under a bilateral investment treaty.
| Proceeding | Covered? | Source |
|---|---|---|
| Civil case in a foreign court | Yes, a foreign tribunal | 28 U.S.C. 1782(a) |
| Foreign criminal investigation before formal accusation | Yes, expressly included | 28 U.S.C. 1782(a) |
| Foreign administrative or quasi-judicial proceeding | Can be, if the body exercises governmental authority | ZF Automotive, quoting Intel |
| Private commercial arbitration (in ZF, a DIS panel; ICC, ICDR and LCIA panels are likewise private) | No | ZF Automotive |
| Ad hoc investor-state arbitration of the kind in ZF | No, on those facts | ZF Automotive |
The Court explained that reading the statute to reach private bodies would make U.S. courts available to "any interested person seeking assistance for proceedings before any private adjudicative body," and would create a mismatch with the narrower discovery available in domestic arbitration under the Federal Arbitration Act.
How does an application work, step by step?
- Confirm the tribunal qualifies. It must be governmental or intergovernmental (ZF Automotive).
- Find the right court. File where the target "resides or is found" (28 U.S.C. 1782(a)); for people and companies based in New York City, that is usually the Southern or Eastern District of New York.
- Show you are an interested person. Parties to the foreign proceeding typically qualify; in Intel, a complainant before the European Commission was treated as one.
- Address the Intel factors. See the next section.
- File the application. In ZF, the applicant filed ex parte, and the target later moved to quash the resulting subpoenas.
- Serve and litigate the subpoenas. Unless the order says otherwise, the Federal Rules of Civil Procedure govern (1782(a)).
- Use the evidence abroad. The material must be "for use in" the foreign proceeding (1782(a)).
What are the Intel factors?
The Supreme Court in Intel identified considerations to guide a court's discretion:
- Is the target a participant in the foreign case? If so, the need for U.S. help is usually less apparent, because the foreign tribunal can order its own participants to produce evidence; nonparticipants may be outside its reach.
- The foreign tribunal and its receptivity. Courts may consider the nature of the tribunal, the character of the proceedings and the receptivity of the foreign government, court or agency to U.S. assistance.
- Circumvention. Whether the request conceals an attempt to circumvent foreign proof-gathering limits or other policies.
- Burden. Unduly intrusive or burdensome requests may be rejected or trimmed.
If Section 1782 is not available, what are the alternatives?
For a private arbitration, the main route is the tribunal itself: evidence is gathered under the chosen institutional rules and the procedural orders the tribunal issues after hearing both sides. Urgent preservation can be sought from an emergency arbitrator before the tribunal is formed, including measures "for the protection or conservation of property" (ICDR Art. 7(4)); see whether you can get emergency relief before a tribunal is formed. The Court in ZF observed that domestic arbitration under the Federal Arbitration Act allows narrower discovery than Section 1782 would, which was one reason it declined to extend the statute to private panels.
After an award is confirmed in the United States, the picture changes. The award becomes a judgment, and New York's post-judgment disclosure devices become available to the judgment creditor to locate assets, including subpoenas to banks and other third parties; see what an information subpoena in New York requires. Voluntary cooperation also remains possible at every stage, because the statute does not prevent anyone in the United States from providing evidence voluntarily for use abroad (1782(b)).
What changes the answer?
- The type of tribunal. Governmental bodies qualify; private arbitral panels do not (ZF Automotive).
- Where the evidence holder is. The court must be in the district where the person resides or is found (1782(a)).
- Privilege. Legally applicable privileges are preserved (1782(a)); internal investigation materials raise their own issues, covered in how privilege works in an internal investigation.
- Treaty claims. The investor-state panel in ZF did not qualify; enforcement of treaty awards is covered in how investment treaty awards are enforced in the United States.
- The institution's own tools. In private arbitration, evidence comes through the tribunal under the chosen rules; see how the ICC, ICDR and LCIA differ.
- Post-award collection. After a U.S. judgment on an award, domestic enforcement discovery applies; see how to enforce a foreign arbitration award in New York.
For example: bank records for a lawsuit in Brazil
For example, imagine a Brazilian company suing a former distributor in a São Paulo state court and needing records of payments routed through a bank branch in Manhattan. (This is a made-up illustration, not a real client or result.) The São Paulo court is a governmental tribunal, so the case qualifies (ZF Automotive). The bank is "found" in the Southern District of New York (1782(a)).
The company, a party to the Brazilian case and so an interested person, applies for an order authorizing a subpoena to the bank. Because the bank is not a participant in the Brazilian case, the first Intel factor favors discovery. The request is limited to identified accounts and dates to avoid an "unduly intrusive or burdensome" objection. If the same dispute were instead before an ICC tribunal, Section 1782 would not be available, and the company would have to seek the records through the tribunal or after a U.S. judgment.
Common mistakes
- Using 1782 for a private arbitration. ZF Automotive forecloses it.
- Filing in the wrong district. It must be where the person resides or is found (1782(a)).
- Overbroad requests. They may be rejected or trimmed (Intel).
- Seeking evidence from a party the foreign court can already reach. That weighs against discovery (Intel).
- Ignoring privilege. It is preserved by statute (1782(a)).
- Treating 1782 like U.S. litigation discovery. Commercial Division discovery has its own limits; see what discovery limits apply in the New York Commercial Division.
What to do this week
- Identify the foreign proceeding and confirm it is before a governmental body.
- List the evidence needed and who holds it in the United States.
- Confirm where each holder resides or is found.
- Check whether the foreign tribunal could order the evidence itself.
- Get local counsel's view on the foreign court's receptivity.
- Narrow the requests to specific documents, custodians and dates.
Frequently asked questions
Can I use Section 1782 for an ICC or ICDR arbitration?
No. After ZF Automotive, private commercial arbitral panels are not "foreign or international tribunals" under the statute.
Does the foreign case have to be filed already?
Not necessarily. The Court in ZF noted, citing Intel, that discovery may be obtained in advance of a proceeding.
Can a foreign court ask directly?
Yes. The order may be made on a letter rogatory or request from the tribunal (1782(a)).
What if I receive a 1782 subpoena?
The target may move to quash or narrow it, as ZF did, raising the statutory requirements, privilege and the Intel factors.
Will the court use foreign procedure?
It may prescribe the foreign country's practice in whole or part; otherwise the Federal Rules of Civil Procedure apply (1782(a)).
Can I give evidence voluntarily?
Yes. The statute does not prevent a person in the United States from voluntarily providing testimony or documents (1782(b)).