The answer may be yes. Section 1782 of Title 28 of the United States Code allows an “interested person” to ask a US federal court for documents or testimony for use in proceedings before a foreign or international tribunal, including the English courts. For businesses involved in cross-border disputes, that creates both an opportunity and a risk: it provides access to evidence that would otherwise be difficult to obtain, but it equally allows an opponent to obtain sensitive material from a US-based third party, affiliate or witness.
A party should therefore consider the tool at the outset of any dispute with a US dimension.
Section 1782 in brief
Broadly speaking, the application can be made to a US federal district court by the international tribunal or foreign court (for example, the English High Court) or by an “interested person”, a category that is not limited to formal parties to the foreign proceedings. If successful, the US federal district court may order a person or entity that “resides or is found” within its district to produce documents or give testimony for use in proceedings before the foreign court or international tribunal.
The person holding the evidence does not need to be a party to the underlying dispute. This makes Section 1782 valuable: the evidence may sit outside the jurisdictional reach of the foreign court but within the reach of a US federal court.
There is no general requirement that the evidence sought must also be discoverable under the procedural rules governing the foreign proceedings. Section 1782 may also be available before those proceedings have formally commenced, provided that they are within “reasonable contemplation”. However, satisfying the statutory requirements does not create an automatic entitlement to discovery.
The US court retains discretion over whether to grant the application and will consider a number of factors, including (i) whether the party from whom discovery is sought is a participant in the foreign proceedings and therefore within the foreign tribunal’s jurisdictional reach; (ii) the nature and character of the foreign proceedings and the foreign tribunal’s receptivity to US judicial assistance; (iii) whether the application seeks to circumvent foreign proof-gathering restrictions or other policies; and (iv) whether the discovery sought is unduly intrusive or burdensome.
Applications are commonly made on an ex parte, or without-notice, basis. A business may therefore first become aware of the application when an order and accompanying subpoena are served. It then has the opportunity to challenge or seek to narrow the request.
The procedure is not generally available in support of private commercial arbitration. In ZF Automotive US, Inc. v Luxshare, Ltd.1, the US Supreme Court held that only governmental or intergovernmental adjudicative bodies fall within the relevant statutory definition of a “foreign or international tribunal”.
Why should you pay attention?
The practical significance of Section 1782 is not confined to disputes involving a US party. The important question is often not where the dispute is taking place, but where relevant evidence or witnesses may be found.
A US connection can arise in ways that are easy to overlook. Potentially relevant material may be held by a US bank, technology provider, professional adviser, corporate affiliate or individual witness. Data generated in a predominantly English or international transaction may also be stored or controlled within the United States. For example, in Soriano v Forensic News LLC [2023] EWHC 262 (KB), in the context of an anti-suit injunction, defendants to English libel proceedings pursued a Section 1782 application seeking documents from a third-party US bank which might have cleared certain US-dollar transfers into or out of the claimant’s accounts at the bank’s UK branch. The defendants considered those documents potentially relevant to their defence of truth. The English court refused to restrain the Section 1782 application, illustrating how a US discovery route may arise from an otherwise less obvious connection with the United States. This gives rise to two distinct questions for businesses.
How can Section 1782 assist you?
Where important evidence appears to sit beyond the reach of the English court, consider whether a Section 1782 application could provide an alternative route to it.
Depending on the circumstances, the procedure may assist in obtaining:
- banking or transactional records relevant to tracing funds;
- evidence concerning corporate ownership or control;
- documents held by US-based third parties or group companies relevant to the claim or preparation thereof;
- testimony from individuals located in the United States; or · material relevant to identifying assets or testing an opponent’s factual case.
Evidence obtained through Section 1782 could affect decisions about whether to commence proceedings, seek interim relief, amend a case or pursue recovery against particular assets or defendants. It may also reveal information, through documents or witness testimony, that would not otherwise emerge through the ordinary disclosure process in the foreign proceedings. For example, in Dreymoor Fertilisers Overseas Pte Ltd v Eurochem Trading GmbH [2018] EWHC 2267 (Comm), a Section 1782 order obtained for use in BVI and Cyprus proceedings required a US-resident former director to provide documents as well as deposition testimony, illustrating the potentially broader forms of evidence available through the US procedure, particularly pre-trial deposition testimony, which has no direct equivalent in ordinary English disclosure.
However, the availability and appropriate scope of any application will depend on the circumstances. Section 1782 is not a substitute for the foreign court’s procedures, nor does the existence of some connection with the United States mean that an application will necessarily succeed.
Could Section 1782 be used against you?
The same features that make Section 1782 attractive to an applicant can create significant issues for the other side.
A business involved in English litigation may not itself be the direct recipient of a US order. Instead, an opponent may seek documents from a US affiliate, bank, service provider, adviser or other third party. That can reduce the business’s control over how potentially sensitive information is identified, reviewed and produced.
The material sought may include documents of wider commercial significance, potentially extending beyond the evidence that would ordinarily be disclosed in the English proceedings. Its production may also raise questions about:
- legal privilege;
- confidentiality and commercially sensitive information;
- restrictions imposed by any US protective order;
- the tactical positions taken by a litigant in the English proceedings;
- consistency between positions taken before the US and English courts; and
- the management of related proceedings or investigations.
Businesses should therefore consider the organisation’s US footprint at an early stage of a dispute. This includes not only US entities within the corporate group, but also relevant witnesses, advisers, financial institutions and service providers that may hold potentially important evidence.
How can you prepare yourself?
If requesting evidence in the United States, the litigation team should identify the specific material required, who is likely to hold it and where that person or entity may be found. Specialist US counsel should be consulted as to whether the statutory requirements are satisfied and how the relevant US court is likely to exercise its discretion.
If in receipt of an order or subpoena, early coordination is important. Again, the recipient should obtain US legal advice promptly and consider whether there are grounds to challenge the application, quash or modify the subpoena, or narrow the categories of material sought. The recipient should also assess privilege, confidentiality, data protection and any potentially conflicting legal obligations.
Confidentiality is also essential to consider, and should not be treated as an issue to address only after production. US courts may impose protective orders restricting who can access disclosed material and the purposes for which it may be used. Those protections may need to be coordinated with confidentiality arrangements or orders in the English proceedings.
The key is to consider Section 1782 as part of the wider dispute strategy, rather than as a standalone US procedural issue -- though one that clearly has potentially significant consequences for litigants in England and Wales.
A question for the start of the dispute, not the end
Section 1782 provides a significant route to documents or testimony that would otherwise remain out of reach. Conversely, it may expose an organisation to broader evidence-gathering through its US operations, counterparties or service providers.
For businesses, the practical questions are straightforward:
- Is there a relevant US connection? Does a party, bank, affiliate, adviser, service provider or witness connected with the dispute have a US presence or potentially relevant documents or data within the reach of a US court?
- Could Section 1782 give either side access to evidence that would not otherwise be re readily available in the foreign proceedings? This may include documents held by third parties or pre-trial deposition testimony.
- Do the foreign proceedings qualify? If the proceedings have not yet commenced, are they sufficiently concrete to be within reasonable contemplation, and will the evidence be sought for use before a qualifying foreign or international tribunal?
- What are the confidentiality implications? Could a Section 1782 application or the resulting evidence expose commercially sensitive or confidential material, and what protections may need to be sought from the US and foreign court?
Asking those questions at the outset will allow the business either to use Section 1782 effectively or to respond to it in a controlled and coordinated way.
