Document type: Checklist Practice area: Litigation — Cross-Border Litigation Jurisdiction: United States Last reviewed: 5 September 2026

Section 1 — Is there a qualifying foreign tribunal?

  • Qualifies: foreign court · foreign administrative or regulatory body with adjudicative functions · intergovernmental body imbued with governmental authority · foreign insolvency proceeding · foreign criminal proceeding before an investigating magistrate
  • Does not qualify: private commercial arbitration, institutional or ad hoc (ZF Automotive)
  • Contested: investor-state tribunals — analyse the treaty regime, institutional permanence, governmental role in appointments and supervision
  • If the dispute is a private arbitration, look for a parallel qualifying proceeding: court action, annulment, enforcement, regulatory investigation, insolvency
  • If relying on a parallel proceeding, be prepared to accept a use restriction

Section 2 — Is the proceeding pending or contemplated?

  • Pending — attach pleadings and docket
  • Contemplated: "within reasonable contemplation," not speculation
  • Supporting record for a pre-suit application: draft pleading settled by foreign counsel · pre-action or demand correspondence · foreign counsel's opinion on viability · limitation deadline

Section 3 — Target selection (the decision that usually decides the case)

Ranked, strongest to weakest:

  • 1. Unaffiliated third party: bank, auditor, consultant, counterparty, former employee
  • 2. Former officer or employee of the adversary, now in the US
  • 3. US entity in the adversary's group but not a party abroad
  • 4. US party to the foreign proceeding — weakest, often denied

"Resides or is found":

  • Individual: domicile or presence in the district
  • Entity: incorporation, principal place of business, or contacts rendering it essentially at home
  • Subsidiary presence does not make a parent "found" absent agency or alter ego
  • Registration to do business is generally insufficient

Section 4 — Venue

  • Whether ex parte applications are routinely granted in the district
  • Local rules on notice
  • District's approach to documents held abroad
  • Intensity of the Intel analysis
  • Typical time from filing to order
  • Developed case law — helps predictability, also arms the respondent
  • Multiple applications: permissible, but a pattern invites forum-shopping arguments; disclose the others

Section 5 — The foreign counsel declaration

Must establish:

  • The tribunal's nature and adjudicative character
  • The proceeding: parties, claims, posture, timetable, with pleadings and docket attached
  • The client's status and procedural rights (interested person)
  • How the evidence would be submitted to the tribunal (the "for use" element — a paragraph, not a sentence)
  • Receptivity, addressed affirmatively: the tribunal accepts evidence obtained abroad; no rule would exclude it
  • Whether the material has been sought abroad, and what happened — disclose any refusal
  • Any case management order or evidentiary cut-off bearing on the request
  • Written confirmation that the material, if produced, can and will be put before the tribunal

Section 6 — Scope discipline

Courts deny broad applications rather than narrowing them.

  • Custodians named: three to six, not twenty
  • Date range tied to the events pleaded abroad
  • Topics traceable to the foreign pleadings — annotate each request with the paragraph it supports; cut unannotated requests
  • Depositions: defined hours, enumerated topics
  • Documents held abroad: consider excluding from the first request
  • Protective order offered in the application
  • Calibration test: would a reasonable foreign judge order this if the foreign system permitted it?

Section 7 — Filing

  • Application/petition with proposed order
  • Memorandum: three statutory requirements, then all four Intel factors addressed affirmatively
  • Declaration of US counsel: parties, proceeding, target, basis for "found," scope
  • Declaration of foreign counsel (Section 5)
  • Proposed subpoenas
  • Proposed protective order
  • Exhibits: foreign pleadings, docket, orders, certified translations
  • Ex parte is standard — the order is leave to serve, not a merits determination
  • Consider voluntary notice where the target is likely to cooperate

Section 8 — Subpoena drafting

  • Definitions short and specific; entities and transactions named
  • Each request traceable to a foreign pleading paragraph
  • Date range stated once at the front
  • Custodians named, with a negotiated addition mechanism
  • Production format specified; target's ordinary format accepted
  • Deposition topics enumerated and bounded
  • Compliance date realistic
  • Protective order attached or referenced
  • Foreign counsel has read it

Section 9 — Responding to an application

  • Options assessed: comply · negotiate · move to quash
  • Decision made after investigating the foreign proceeding, not the US papers
  • Cost of a contested motion compared with the cost of a narrowed production
  • Cost shifting requested under Rule 45

Foreign investigation — three questions to foreign counsel:

  • Has this material been sought abroad, and what happened? A refusal is the strongest available fact
  • Would the tribunal receive this evidence — and can it be asked to say so?
  • Is there a case management order or rule the application evades?

Section 10 — Motion to quash

  • Statutory failures: not found in the district · no qualifying tribunal · not in reasonable contemplation · not an interested person · not "for use"
  • Intel 1 — participation: target is a participant or affiliated; the tribunal can order it itself
  • Intel 2 — receptivity: with the best evidence — a statement from the tribunal, a foreign decision, a governmental position. An expert declaration about what the foreign court would order is the wrong question (Intel rejected foreign discoverability)
  • Intel 3 — circumvention: prior refusal abroad · evasion of case management · blocking statute · use for another purpose
  • Intel 4 — burden: quantified, with a declaration from someone who costed it
  • Privilege identified by category
  • A lesser alternative always offered — courts narrow more readily than they quash

Section 11 — Intervention

  • If the client is the foreign adversary rather than the target, move to intervene early — before the target negotiates a production
  • Coordinate with the target; consider funding the opposition and a joint defence arrangement
  • Recognize that the target has no reason to fight on the adversary's behalf

Section 12 — Blocking statutes and data protection

Applicant — defuse by design:

  • US-held documents targeted
  • Business rather than personal information
  • Custodians named
  • Protective order offered
  • Redaction of unnecessary personal data accepted

Respondent — make the objection real:

  • The prohibition applies to this disclosure, with text and a considered opinion
  • It is actually enforced, with evidence
  • Real exposure identified, and who bears it
  • An alternative lawful channel exists
  • Data protection mitigations proposed: minimization, pseudonymization, in-country review, protective order
  • Aérospatiale comity factors briefed expressly

Section 13 — Privilege across borders

  • Touch-base analysis applied to determine governing privilege law
  • In-house counsel privilege in the foreign forum checked — several jurisdictions do not recognize it
  • Patent/regulatory agent, litigation privilege, without-prejudice, and common interest rules compared
  • Privilege protocol and clawback in the protective order, rather than document-by-document fights
  • Category logging sought where volume warrants
  • Consequences of filing in the foreign proceeding considered — protection may not survive there
  • Waiver rules of both systems understood

Section 14 — Timelines

  • Applicant: 2–4 weeks to prepare · 1–8 weeks to an ex parte order · 14+ days for a motion to quash · 4–12 weeks to production if unopposed · add 3–6 months if opposed
  • Respondent: 14 days to move, extensions usually agreed; foreign investigation runs concurrently and takes 2–4 weeks
  • Foreign hearing date diaried — it determines whether the application is worth making
  • Translation time budgeted

Section 15 — Appeal and the counter-move

  • An order granting or denying is generally final and appealable — unlike ordinary discovery orders
  • Denied applicant: frame as legal error (foreign discoverability applied · a factor treated as dispositive · wrong standard for "found" or "tribunal")
  • Respondent ordered to produce: seek a stay in the district court first; consider whether production moots the appeal
  • Defensive application considered: the respondent abroad is also an interested person
  • Filed on its merits, not as retaliation — specific material, specific defences
  • Mutual withdrawal or reciprocal narrowed exchange explored

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