Parties to pending or contemplated foreign proceedings potentially can use 28 U.S.C. §1782 to obtain broad discovery from U.S. persons for use in their foreign proceedings. Although the statute gives courts ultimate discretion regarding whether to allow such discovery—because it “authorizes, but does not require, a federal district court” to compel the discovery that a petitioner seeks, Intel v. Advanced Micro Devices, 542 U.S. 241, 255 (2004)—courts tend to exercise their discretion liberally in favor of granting §1782 discovery.

Courts will deny §1782 discovery, however, if the petitioner fails to establish that it satisfies certain mandatory requirements found in the language of the statute, including that (1) the person from whom discovery is sought “resides or is found” in the district where the petition is filed, and (2) the discovery is for use in a proceeding before “a foreign or international tribunal.” 28 U.S.C. §1782. U.S. District Judge Jed S. Rakoff for the Southern District of New York recently demonstrated as much in In re Petrobras Securities Litigation, 2019 WL 3403281 (S.D.N.Y. July 29, 2019), when he denied a petition by Cornell University seeking §1782 discovery for failure to satisfy these statutory requirements.

‘Petrobras’