What types of foreign proceedings qualify for §1782 discovery?+
Proceedings before a foreign court or other body exercising governmental authority qualify. That includes civil litigation, criminal proceedings under a judge's control (including criminal investigations conducted before formal accusation), and insolvency proceedings such as a Mexican concurso mercantil or an Argentine concurso. The proceeding need not be pending. Under Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), it is enough that the proceeding is within reasonable contemplation, though it must be more than an idea in counsel's mind. See In re Clerici, 481 F.3d 1324 (11th Cir. 2007); Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 747 F.3d 1262 (11th Cir. 2014). Private commercial arbitration does not qualify.
Can §1782 be used for international arbitration?+
No. In ZF Automotive US, Inc. v. Luxshare, Ltd., 596 U.S. 619 (2022), the Supreme Court held that only a tribunal exercising governmental or intergovernmental authority is a 'foreign or international tribunal' under the statute. Panels in private commercial arbitrations (ICC, ICDR, LCIA, and similar) do not qualify, and in the companion case the Court held an ad hoc investor-state panel did not qualify either. What remains available is discovery for use in the court proceedings that surround an arbitration, such as annulment or enforcement litigation, and in related civil, criminal, or insolvency cases.
Do Mexican concursos mercantiles and other Latin American insolvency proceedings qualify?+
Yes. A concurso mercantil is a judicial proceeding, and creditors, trustees, and other interested parties routinely use §1782 to obtain U.S. evidence for it, such as bank records tracing pre-petition transfers or documents supporting a fraudulent-transfer challenge. In a recent application our firm filed for an indenture trustee in connection with a Mexican concurso, the court granted the §1782 order within forty-eight hours of filing.
What does 'for use' in a foreign proceeding actually require?+
The applicant must be in a position to inject the evidence into the foreign proceeding. A party, a private complainant with party status (querellante), or a creditor in an insolvency typically qualifies. Handing documents to a prosecutor and hoping the prosecutor uses them is not enough, and a mere witness generally cannot satisfy the requirement. The evidence may also serve more than one purpose; using it in the foreign case does not become improper because it could matter elsewhere, so long as the application is made in good faith rather than to circumvent discovery limits. The Eleventh Circuit has also held that challenges to the applicant's standing in the foreign proceeding are for the foreign tribunal to decide, not the §1782 court. Furstenberg Finance SAS v. Litai Assets LLC, 877 F.3d 1031 (11th Cir. 2017).
Who qualifies as an 'interested person'?+
The client, not the lawyer. Parties to the foreign proceeding always qualify. So do private complainants, victims with party status, creditors in insolvency proceedings, and someone who is preparing to file a proceeding that is reasonably contemplated. Foreign counsel supports the application, most importantly through a sworn expert declaration on the foreign proceeding, but the client holds the legal interest.
How fast can a §1782 order be obtained?+
A complete, well-supported application can be granted quickly because the court has everything it needs to rule on the papers. Our firm's recent applications in the Southern District of Florida produced orders in nine days and, most recently, in forty-eight hours. The order itself only authorizes subpoenas. The recipient keeps every objection, including scope, privilege, and jurisdiction, and can move to quash before producing anything, so the speed of the initial order takes nothing away from the target's rights. Practice varies by district, and the application should be calibrated to the forum.
Does U.S. bank secrecy protect account records from §1782 discovery?+
No. The United States recognizes no bank secrecy that withstands a federal court order. Once the court authorizes the subpoena, the bank must produce the records, including account statements, account-opening files, wire transfer records, and communications.
Can §1782 discovery be used against a law firm?+
Yes. A law firm found in a U.S. district is subject to §1782 discovery like any other person or entity. The Oro Negro Drilling petition, in which our firm sought discovery from opposing counsel based on allegations that the firm received $8 million traceable to client funds, is an example. Privilege and work-product objections are typically raised in defense, and their strength depends on the specific documents.
Where must the application be filed?+
In the federal district where the person or company holding the evidence resides or is found. Evidence spread across several states means parallel applications in several districts, though corporate formalities sometimes help, because banks incorporated in the same state can be reached through a single court there. Choosing the districts and sequencing the applications is part of the strategy.
