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

The asymmetry that makes the statute matter

Most legal systems do not have American discovery. In much of the world, a party proves its case from documents it already holds, supplemented by a narrow, court-supervised production of specifically identified materials. There is no general obligation to disclose adverse documents, no depositions, and nothing resembling a request for all communications on a subject over a five-year period.

28 U.S.C. § 1782 opens a door in that wall. It permits a federal district court to order a person who "resides or is found" in its district to give testimony or produce documents "for use in a proceeding in a foreign or international tribunal," on the application of the tribunal itself or of "any interested person."

The consequence is an asymmetry that foreign litigants and their counsel have learned to exploit. A German company suing another German company in Frankfurt cannot obtain broad discovery in Germany — but if the defendant has a US subsidiary, or if a relevant witness is in New York, a § 1782 application may produce documents and testimony the German court would never have ordered.

That asymmetry is the source of both the statute's utility and the twenty years of litigation about its limits.

The three statutory requirements

A court has authority to grant an application only if all three are satisfied.

1. The person from whom discovery is sought resides or is found in the district.

For an individual, this is usually straightforward — domicile, or physical presence. Courts have granted applications where the individual was served while temporarily in the district, though the practice attracts scrutiny where the presence was contrived.

For an entity, the analysis has largely converged on personal jurisdiction concepts: a corporation is "found" where it is incorporated, where it has its principal place of business, or where its contacts are so continuous and systematic as to render it essentially at home. A foreign corporation with a US branch office is generally found in the district of the branch, at least as to matters connected to it.

Contested: whether a foreign entity's registration to do business, or the presence of a subsidiary, suffices. The prevailing view is that a subsidiary's presence does not make the parent "found" absent an agency or alter ego showing, and mere registration is not enough after the narrowing of general jurisdiction.

2. The discovery is for use in a proceeding in a foreign or international tribunal.

The proceeding need not be pending. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), held that it must be "within reasonable contemplation" — dispositive relief need not be imminent, but the applicant must show more than a speculative intention to litigate someday.

"For use" requires that the material be usable in the foreign proceeding, in the sense that the applicant has some means of injecting it into the record. The applicant need not show that the foreign tribunal would order the same discovery, or that the evidence would be admissible there.

3. The applicant is an interested person, or the tribunal itself.

Intel construed this broadly: it includes litigants, but also a complainant before a foreign competition authority who possessed "significant procedural rights" — the right to submit information, to be heard, and to seek review. It is not limited to formal parties.

What ZF Automotive decided

The most litigated question for a decade was whether "foreign or international tribunal" includes private arbitral panels. The circuits split, and the Supreme Court answered in ZF Automotive US, Inc. v. Luxshare, Ltd., 596 U.S. 619 (2022).

The holding: "only a governmental or intergovernmental adjudicative body constitutes a 'foreign or international tribunal' under § 1782," and "such bodies are those that exercise governmental authority conferred by one or more nations."

What is out: private commercial arbitration. The Court addressed a panel constituted under the arbitration rules of a German institution and held it was not a foreign tribunal. Private parties cannot confer governmental authority by agreeing to arbitrate.

What is in: foreign courts; foreign administrative and regulatory bodies exercising adjudicative functions; intergovernmental bodies created by two or more nations and imbued with governmental authority.

The investor-state question, which the Court answered on the facts before it. The companion case involved an ad hoc panel constituted under a bilateral investment treaty and UNCITRAL rules. The Court held it was not a governmental body, notwithstanding that a sovereign was a party and the treaty was the source of the offer to arbitrate:

"The relevant question is whether the nations intended that the ad hoc panel exercise governmental authority."

Because the treaty's arbitration option was one of several, the panel was ad hoc, its members were selected by the parties, it had no permanent institutional existence, and its proceedings were not governed by any governmental body, the Court concluded it functioned like a private arbitral panel.

What that leaves open, and what practitioners now litigate: whether a different investor-state tribunal — one constituted under a treaty regime with permanent institutional machinery, or with governmental involvement in the appointment or supervision of arbitrators, or where the instrument reflects an intention that the panel exercise governmental authority — could qualify. The Court framed the inquiry as one about the nations' intent, which is an invitation to argue about particular treaty regimes rather than a categorical exclusion.

The practical effect has been substantial. A large volume of § 1782 applications supporting private commercial arbitration disappeared, and applications supporting foreign court proceedings and regulatory actions have become correspondingly more prominent. Applicants who would have sought 1782 discovery for an arbitration now consider whether a related court proceeding — an annulment action, an enforcement proceeding, a parallel civil suit — supplies the necessary foreign tribunal.

The Intel discretionary factors

Satisfying the statutory requirements gives a court authority to order discovery. It does not require it. Intel set out four factors, and they decide most contested applications.

Factor one: whether the person from whom discovery is sought is a participant in the foreign proceeding.

Where the target is a party, the foreign tribunal has jurisdiction over them and can order production itself; the need for § 1782 aid is less apparent. Where the target is a non-participant, the foreign tribunal may be unable to reach them, and the case for assistance is stronger.

This factor does more work than any other. Applications against non-parties succeed far more often than applications against the applicant's foreign adversary or its US affiliate.

Factor two: the nature of the foreign tribunal, the character of the proceedings, and the receptivity of the foreign government, court, or agency to US federal-court assistance.

Courts examine whether the foreign tribunal would welcome or resent the assistance. The starting presumption is receptivity: absent authoritative proof that the foreign tribunal would reject the evidence, courts assume it would not object.

What counts as authoritative proof is contested and important. A declaration from a foreign law expert saying the foreign court would not order such discovery is not enough — the question is not what the foreign court would order but whether it would accept what a US court provides. What can suffice: a statement from the foreign tribunal itself; a judicial decision of the foreign jurisdiction rejecting such evidence; or a formal governmental position, sometimes expressed through a diplomatic communication or an amicus filing.

Factor three: whether the request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States.

Intel expressly rejected a foreign discoverability requirement — the applicant need not show that the material would be discoverable in the foreign forum. But circumvention remains a factor.

What courts look for: whether the applicant sought the material in the foreign proceeding and was refused; whether the foreign tribunal has imposed a discovery cut-off or a case management order the application evades; whether a foreign blocking statute would be violated; and whether the application is being used to obtain material for a purpose other than the foreign proceeding.

A refusal by the foreign tribunal is the most damaging fact an applicant can face. An applicant who has not asked the foreign court, by contrast, is not thereby disqualified.

Factor four: whether the request is unduly intrusive or burdensome.

The ordinary proportionality analysis, applied through the Federal Rules. A request calibrated to the foreign proceeding — specific custodians, defined date ranges, identified topics — fares well. A request modelled on a US commercial case, seeking all communications concerning a subject over six years from twenty custodians, invites the court to deny outright rather than to trim.

The practical lesson for applicants: narrow the request before filing. Courts frequently deny broad applications rather than narrowing them, and a denial is much harder to recover from than a grant on limited terms.

Documents held abroad

A recurring and unsettled question is whether § 1782 reaches material located outside the United States.

The statutory text is silent, and the Supreme Court has not resolved it. Intel contains language that both sides quote.

The prevailing approach in the courts that have addressed it is that there is no per se extraterritoriality bar — the statute's requirement is that the person reside or be found in the district, not that the documents be located there. Where a US-based entity has possession, custody, or control of documents held abroad, production may be ordered.

But location matters to the discretionary analysis. The fourth Intel factor — undue burden — takes account of the difficulty of collecting from foreign systems, and the third factor takes account of foreign data protection and blocking statutes. A request for documents held by a foreign affiliate, in a jurisdiction with strict data protection law, faces a substantially harder path than the same request for documents in the respondent's US servers.

The practical position for applicants: target US-held material first. It is faster, cheaper, and far less likely to generate a blocking statute or data protection objection that consumes the proceeding.

For respondents: where documents are abroad, the arguments are burden, foreign law prohibitions, and — the strongest where available — that the applicant is using § 1782 to reach material the foreign tribunal has already declined to order.

Ex parte practice and the motion to quash

The procedural shape of a § 1782 case is unusual and catches practitioners unfamiliar with it.

Applications are routinely filed ex parte. This is accepted practice: the statute contemplates it, and courts regularly grant leave to serve subpoenas without hearing from the target first, on the understanding that the target may move to quash.

What the applicant files: an application or petition; a memorandum addressing the three statutory requirements and the four Intel factors; a declaration of counsel describing the foreign proceeding; often a declaration of foreign counsel explaining the proceeding and the use to which the evidence would be put; and the proposed subpoenas.

What the order grants is leave to serve. It is not a determination that the discovery must be produced.

The target's response is a motion to quash or for a protective order, which is where the contest actually happens. On that motion, courts consider the statutory requirements and the Intel factors de novo — the ex parte grant carries little weight.

Standing to intervene. The party in the foreign proceeding against whom the evidence would be used frequently is not the subpoena target — the target may be a bank, an accountant, a former employee, or a US affiliate. Courts generally permit the foreign adversary to intervene to oppose, on the ground that its interests are directly affected. This matters: a target with no stake in the foreign dispute may not fight, while the real adversary will.

Privileges apply. Section 1782 expressly provides that a person may not be compelled to give testimony or produce documents in violation of "any legally applicable privilege." That includes US privileges and, courts have held, foreign privileges where applicable under choice-of-law analysis. Foreign in-house counsel privilege — which in several jurisdictions does not exist, or exists in a narrower form — is a recurring and genuinely difficult issue.

Discovery rules. The Federal Rules apply to the extent the court does not prescribe otherwise, which means Rule 45 for subpoenas, Rule 26 proportionality, and the ordinary protective order machinery.

The Hague Evidence Convention and the alternative route

The Convention on the Taking of Evidence Abroad in Civil or Commercial Matters provides a formal mechanism for obtaining evidence across borders through letters of request transmitted between designated central authorities. 28 U.S.C. § 1781 addresses transmittal of letters rogatory and requests by the State Department.

How the Convention compares with § 1782:

§ 1782 Hague Convention
Speed Weeks to months Months to years
Scope US-style discovery Narrow, court-supervised
Depositions Available Rarely, and with limits
Pre-trial document requests Available Many states have declared reservations against them
Control Applicant drafts the request Foreign authority executes as it sees fit

Société Nationale Industrielle Aérospatiale v. United States District Court, 482 U.S. 522 (1987), addressed whether the Convention is the exclusive means of obtaining evidence abroad from a foreign party subject to US jurisdiction. The Court held it is not exclusive and does not require first resort:

"The Hague Convention did not deprive the District Court of the jurisdiction it otherwise possessed to order a foreign national party before it to produce evidence physically located within a signatory nation."

The Court prescribed instead a comity analysis, weighing the importance of the documents, the specificity of the request, whether the information originated in the United States, the availability of alternative means, and the extent to which non-compliance would undermine important interests of either state.

Practical consequence. Where the target is subject to US jurisdiction, US discovery mechanisms — including § 1782 — are available without first exhausting the Convention. Where the target is not, the Convention or letters rogatory may be the only route, and the applicant must accept its limits.

Blocking statutes and data protection

Several jurisdictions prohibit or restrict the disclosure of evidence for use in foreign proceedings outside the channels of judicial cooperation, and data protection regimes restrict cross-border transfers of personal data.

How US courts have handled blocking statutes. Historically, with considerable scepticism where the statute appeared to be enacted to frustrate US discovery and was rarely enforced at home. Courts have applied the Aérospatiale comity factors and have frequently ordered production notwithstanding a foreign prohibition, particularly where no prosecution had ever been brought under it.

That posture has been adjusted as enforcement of some blocking statutes has become real rather than theoretical, and as data protection regimes have been backed by substantial penalties. The credible modern argument for a respondent is not that a statute exists but that it is enforced, that the specific disclosure would violate it, and that a mechanism of judicial cooperation is available.

Data protection specifically. Cross-border transfer of personal data for litigation raises questions of lawful basis, necessity, and transfer mechanism. The practical answers are familiar: minimize the personal data transferred; pseudonymize where possible; use a protective order restricting onward disclosure; and consider whether the material can be reviewed in the source jurisdiction with only responsive, redacted documents transferred.

For an applicant, the way to defuse this is to design the request so the objection does not arise: US-held documents, specific custodians, business rather than personal information, and a protective order offered at the outset.

Worked example one: the document application

Camille Roussel represents a Belgian company suing a competitor in the Commercial Court in Brussels over an alleged breach of a distribution agreement. Belgian procedure will not produce the internal communications she needs. The defendant has a US subsidiary in Delaware, and a former sales director now lives in Chicago.

Target selection. She does not apply against the US subsidiary of her adversary. Under the first Intel factor, a target affiliated with a participant in the foreign proceeding invites the argument that the Brussels court could order the material itself. She applies against the former sales director, a genuine non-participant, in the Northern District of Illinois.

Framing the foreign proceeding. Her application attaches a declaration from Belgian counsel describing the pending action, the issues, the procedural posture, and — importantly — how the evidence would be submitted to the Brussels court. The "for use" requirement is satisfied by showing a mechanism, not merely an intention.

Receptivity. She addresses the second factor affirmatively: Belgian courts accept documentary evidence obtained abroad, and there is no rule excluding it. She does not wait for the respondent to raise the point.

Scope. She narrows before filing: three custodial email accounts, a twenty-two-month period, seven defined topics tied to the pleaded issues in Brussels. Roughly the scope a Belgian judge might order if Belgian procedure permitted it. She offers a protective order restricting use to the Brussels proceeding.

The result. Ex parte leave granted. The former director does not oppose. Production of about 4,000 documents in ten weeks.

Why it worked. Non-party target, narrow request, affirmative receptivity showing, and a clear mechanism for use. The absence of opposition was not luck — a request that does not threaten the target is a request the target will not spend money fighting.

Worked example two: the deposition

Hiroshi Tanabe represents a Japanese company in an arbitration seated in Singapore under institutional rules. After ZF Automotive, § 1782 is not available for that arbitration.

What he does instead. There is a parallel proceeding: his client has filed a civil action in the Tokyo District Court against a third party arising from the same facts. That is unquestionably a foreign tribunal.

The scope problem. The evidence he wants — testimony from a US executive about the negotiation history — is relevant to both proceedings. The respondent argues that the application is a pretext to obtain arbitration discovery ZF Automotive forecloses.

How the court approaches it. The application is judged by reference to the Tokyo proceeding. If the material is genuinely for use there, the fact that it may also assist an arbitration does not disqualify the application — but the third Intel factor requires the court to consider whether the request conceals an attempt to circumvent restrictions.

Hiroshi's showing. He identifies specific issues in the Tokyo pleadings the testimony bears on; he limits the deposition topics to those issues; he accepts a protective order limiting use to the Tokyo proceeding and expressly prohibiting use in the Singapore arbitration; and his Japanese counsel's declaration explains how deposition testimony would be submitted in Tokyo.

The outcome. A four-hour deposition on five defined topics, subject to the protective order.

The lesson. After ZF Automotive, the question for an arbitration party is whether a genuine court proceeding exists that the evidence serves. Where it does, the application must be built around that proceeding honestly — and the applicant should expect to accept a use restriction.

Worked example three: defeating the application

Adaeze Chukwu represents a US bank served with a § 1782 subpoena seeking account records relating to a customer, sought by a foreign litigant in a fraud action abroad.

Her first question is not legal but factual: what does the foreign proceeding actually look like? Her foreign counsel obtains the docket and discovers that the applicant sought precisely this material from the foreign court six months earlier and was refused, on the ground that the request was speculative.

That fact is the case. The third Intel factor — circumvention of foreign proof-gathering restrictions — is at its strongest where the foreign tribunal has considered and denied the same request. She puts the foreign court's order in front of the district court, with a certified translation.

Second, she attacks the second factor with something better than an expert declaration about foreign practice: a subsequent order of the foreign court, obtained on her client's application, stating that the evidence would not be received. That is authoritative proof of non-receptivity rather than speculation about it.

Third, burden: the request seeks fifteen years of records across four entity relationships, in a bank whose systems for the earliest period were retired. She quantifies the cost and the retrieval effort with a declaration from the bank's records manager.

Fourth, privacy: the records concern third parties who are not involved in the foreign dispute.

The outcome. The subpoena is quashed. The court's order rests principally on the third factor, citing the foreign court's refusal.

The lesson for both sides. The most important work in a § 1782 case is often done in the foreign forum. An applicant who has been refused there is in serious trouble; a respondent who can obtain a statement from the foreign tribunal has the strongest available defence. Neither fact is discoverable from the US papers alone.

Strategic uses beyond the obvious

Pre-suit investigation. Because the foreign proceeding need only be within reasonable contemplation, § 1782 can be used to develop a case before filing. The applicant must show more than speculation — a draft pleading, a formal demand, an expert opinion on the claim's viability — but a well-supported pre-suit application can be granted.

Asset tracing and enforcement. Enforcement proceedings abroad are foreign proceedings, and § 1782 has become an important tool for judgment creditors seeking to locate assets through US banks and financial intermediaries. Applications framed around a specific enforcement action, seeking transaction records from a defined period, do well.

Insolvency. Foreign insolvency proceedings qualify, and a foreign representative may use § 1782 alongside the recognition and assistance available under the cross-border insolvency framework.

Criminal and regulatory matters. Foreign criminal investigations conducted by an investigating magistrate or a prosecutorial body with adjudicative functions have been held to qualify; purely police investigations are more doubtful.

Defensive use. A respondent in a foreign proceeding may itself be an interested person and may apply for discovery from the claimant's US affiliates or from third parties. This is underused. Where a foreign claimant has US connections, a defensive § 1782 application can neutralize the asymmetry the claimant was exploiting — and the prospect of one is a genuine deterrent.

Leverage. Because applications are ex parte and fast, they generate pressure disproportionate to their cost. That is also a reason for caution: courts are alert to applications filed for leverage rather than evidence, and the third Intel factor is where that argument lands.

Venue, and why applicants care about it

Because the statute requires only that the target reside or be found in the district, an applicant with several potential targets has a choice of forum — and the districts differ.

What varies by district: how readily ex parte applications are granted; whether local rules require notice before or contemporaneously with filing; how the district treats documents held abroad; the intensity of the Intel analysis; typical timelines; and whether the district has a body of § 1782 law at all.

The districts that see the most of this work — those containing major financial centres and large corporate populations — have developed detailed case law, which cuts both ways: it makes outcomes more predictable and it means the respondent's arguments are well-developed too.

Multiple applications. An applicant with targets in several districts may file in each. This is permissible and common in asset-tracing matters, where the targets are banks in different places. It is also expensive, and courts occasionally look unfavourably on a pattern of applications that suggests forum shopping.

Transfer and coordination. There is no MDL-style mechanism for § 1782 applications, though courts have on occasion coordinated informally where the same foreign proceeding generated applications in several districts.

Appeals. An order granting or denying a § 1782 application is generally appealable as a final order, since the § 1782 proceeding is itself the whole case. That is a meaningful difference from ordinary discovery orders, and it means a denied applicant has a route that an ordinary discovery loser does not.

What the foreign tribunal thinks

A theme running through the Intel factors is deference to the foreign forum, and practitioners on both sides underuse the most direct evidence of what that forum thinks.

For a respondent, the strongest possible showing is a communication from the foreign tribunal itself indicating that it would not receive the evidence or does not welcome the assistance. Some foreign courts will entertain an application for such a statement; some will not. It is worth asking, and it is worth asking early, because the timeline of a § 1782 proceeding is short.

For an applicant, the mirror image: where the foreign tribunal has indicated that it would receive the evidence — or, better, has asked for it — the application becomes very difficult to resist. Section 1782 permits an application by the tribunal itself, and a letter of request from the foreign court accompanying an interested person's application is powerful.

A caution about foreign law declarations. Both sides file them and courts discount them heavily, because they are paid, they conflict, and they usually address the wrong question. A declaration explaining that the foreign court would not itself order this discovery says nothing about receptivity — Intel expressly rejected a foreign discoverability requirement. The declaration that matters explains the proceeding, the applicant's procedural rights, how evidence is submitted, and any rule that would actually exclude the material.

The diplomatic channel. In cases with governmental interest, a foreign state may express its views, sometimes through a diplomatic note or an amicus filing. Courts take these seriously. Where a client has a genuine sovereign interest at stake, the possibility is worth exploring, though it is slow and cannot be manufactured.

Where the doctrine is still moving

Four questions are live and worth watching.

1. Which investor-state tribunals qualify after ZF Automotive. The Court's test — whether the nations intended the panel to exercise governmental authority — is fact-specific and treaty-specific. Tribunals constituted under regimes with permanent institutional machinery, governmental involvement in appointments, or state-controlled supervision present a different question from the ad hoc UNCITRAL panel the Court considered.

2. Extraterritorial reach. No per se bar has emerged, but the boundaries of "possession, custody, or control" over documents held by foreign affiliates remain contested, and data protection law is pressing on the question from the other direction.

3. "Resides or is found" for entities. The convergence on personal jurisdiction concepts has narrowed the statute's reach for foreign corporations, and the treatment of branch offices, registered agents, and subsidiaries continues to divide courts.

4. What counts as authoritative proof of non-receptivity. The standard is demanding and unevenly applied, and respondents continue to test how much less than a statement from the tribunal itself will suffice.

For practitioners, the practical implication of all four is the same: the law in this area is district-specific and moving, and an application or opposition built on a two-year-old memorandum is likely to be built on sand.

The economics, and a note on proportion

A § 1782 application is cheap relative to what it produces. Preparing an application with the supporting declarations is a matter of weeks, not months; the filing fee is nominal; and an unopposed application can produce a substantial document production for a fraction of what the same material would cost to obtain through any other cross-border mechanism.

That asymmetry has consequences worth naming.

For applicants, it means the tool is worth considering in almost any cross-border dispute where the adversary or a relevant witness has US connections. Foreign counsel frequently do not think of it, and a US firm that raises the possibility early adds real value.

For respondents, it means being served with a § 1782 subpoena is not a signal that the applicant has invested heavily in the theory. Some applications are serious; some are exploratory; some are leverage. The response should be proportionate to which, and the way to find out is to examine the foreign proceeding rather than the US papers.

For both, the cost of the fight is asymmetric in the other direction. A contested motion to quash, with foreign law declarations on both sides, is a real piece of litigation — and it takes place in a US court that has no stake in the underlying dispute and limited patience for it. Courts in busy districts have said, in various ways, that they do not intend to become an adjunct discovery service for the world's litigation, and applications that look like that are treated accordingly.

A practical consequence. The applications that succeed are, almost without exception, the modest ones: a specific non-party, a defined set of documents, a period tied to the foreign pleadings, and a protective order offered before it is demanded. The applications that fail are the ambitious ones. That is an unusual dynamic in litigation, where ambition is normally rewarded, and it is the single most useful thing to understand about practising under this statute.

A note on comity

It is worth stepping back from the mechanics to say what the statute is for, because the Intel factors make more sense in that light.

Section 1782 and its predecessors were enacted to make the United States a good citizen of the international legal order — to provide assistance to foreign tribunals in the hope, expressed in the legislative history, that other nations would reciprocate. The statute is an act of judicial cooperation, not a litigation weapon, and the discretionary factors are the mechanism by which courts keep it from becoming one.

That explains why the factors ask the questions they do. Is the foreign tribunal able to obtain this itself? Would it welcome our help? Is the applicant using us to evade limits the foreign forum has imposed? Is the burden proportionate to the assistance provided?

An application framed as an act of cooperation — here is a proceeding, here is what it needs, here is why the foreign court cannot get it, here is a narrow request — is answering those questions. An application framed as a litigation manoeuvre answers none of them, and increasingly courts say so.

The corollary matters for respondents too. Opposing on the ground that the applicant is getting more than the foreign court would order is answering the wrong question; Intel rejected that argument explicitly. Opposing on the ground that the foreign court has already refused, or would not receive the evidence, or that the request evades its case management, is opposing in the statute's own terms.

Both sides do better when they argue about comity rather than about discovery.

Ten things practitioners get wrong

1. Applying against the adversary's US affiliate. The first Intel factor is the most important, and a target connected to a participant in the foreign proceeding is the weakest available target.

2. Filing a US-scale request. Twenty custodians and six years invites denial rather than narrowing.

3. Assuming ZF Automotive ended arbitration applications entirely. It ended them for private commercial arbitration. Related court proceedings, annulment actions, enforcement actions, and some treaty regimes remain live.

4. Filing a foreign law declaration about discoverability. Intel rejected a foreign discoverability requirement. The declaration that matters addresses receptivity, procedural rights, and how the evidence would be used.

5. Not checking the foreign docket. For a respondent, a prior refusal by the foreign tribunal is the strongest fact available, and it is found in the foreign file, not the US papers.

6. Ignoring the protective order. Offering one at the outset removes an objection and costs nothing.

7. Treating the ex parte order as a win. It is leave to serve. The contest is the motion to quash, decided de novo.

8. Forgetting that the foreign adversary can intervene. The subpoena target may not fight; the real opponent will.

9. Missing the appeal. An order denying an application is generally final and appealable — a route ordinary discovery losers do not have.

10. Overlooking the defensive application. A respondent in a foreign proceeding is also an interested person, and the possibility of a reciprocal application changes the dynamics considerably.

Working with foreign counsel

Nearly every § 1782 matter is a joint enterprise between US counsel and counsel in the foreign forum, and the quality of that collaboration determines the outcome more than the quality of the US brief.

What US counsel needs from foreign counsel, and should ask for in writing at the outset: the procedural posture of the foreign proceeding and its likely timetable; the client's procedural rights in it; how documentary and testimonial evidence is submitted; whether any request for this material has been made and what happened; whether the foreign court has issued case management directions bearing on evidence; whether any rule would exclude the material; and whether the foreign court could be asked to express a view.

What foreign counsel needs from US counsel: a realistic account of the timeline; a clear explanation that the ex parte order is not the end; the scope actually achievable; the cost; and the fact that the material produced may be subject to a protective order limiting its use.

Where collaboration usually fails. Foreign counsel, unfamiliar with US practice, sometimes ask for everything — a request US counsel should narrow rather than transmit. And US counsel, unfamiliar with the foreign forum, sometimes file applications that will produce material the foreign court cannot receive, which wastes everyone's money and damages the client's position in the forum that matters.

A useful discipline. Before filing, have foreign counsel confirm in writing that if the requested material is produced, it can and will be put before the foreign tribunal, and describe how. If they cannot say that, the "for use" requirement is in doubt and the application should be reconsidered.

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