Regular readers of this column will recall that, over the years, we have followed closely the development of the law under §1782 of Title 28 of the U.S. Code (§1782). In this article, we look at two highly publicized recent circuit court decisions and ask the question whether they have opened wider the door to the use §1782. The answer is, “yes” in some ways, but, in one very important way, there was a significant narrowing.

To start, a reminder about the statute. Section 1782 authorizes a federal district court to order the production of documents, as well as depositions of witnesses, in aid of foreign proceedings. The §1782 application is typically initiated through an ex parte application and does not require that the foreign proceeding even be pending at the time of the application. Section 1782 authorizes a district court to grant a petition for judicial assistance if three statutory requirements are met: (1) the request for discovery is made “by a foreign or international tribunal” or “any interested person”; (2) the discovery requested is “for use in a proceeding in a foreign or international tribunal”; and (3) the person from whom the discovery is sought resides, or is found, in the district of the district court where the request has been made.