No safe harbour: The growing power of US discovery in cross-border disputes

Leah Friedman
Latham & Watkins, New York

Introduction

Section 1782 of the United States Judiciary Act has become one of the most powerful tools available to international litigants seeking evidence located in the United States.¹ As cross-border disputes grow in volume and complexity, the statute’s utility has expanded commensurately.  What began as a relatively obscure mechanism for cross-border judicial assistance has evolved into a critical component of cross-border litigation strategy.

The statute continues to evolve:  recent appellate decisions that affect the scope of § 1782 will have profound implications for cross-border litigation practice.  This note addresses two recent developments that merit close attention—decisions addressing the burden of proof that applies to foreign privilege claims in § 1782 proceedings; and the extent to which documents obtained under § 1782 may be used in other, unrelated proceedings.  Both of these rulings reflect an effort to align § 1782 with U.S. discovery practice generally—a controversial development given the profound differences between discovery in the United States and abroad.

Background: Section 1782 and the intel framework

Section 1782(a) permits any “interested person” to petition a federal district court for an order compelling testimony or documents “for use in a proceeding in a foreign or international tribunal.”  The statute was enacted to encourage international judicial cooperation and to provide foreign litigants with a mechanism for accessing evidence located in the United States.  

A person seeking discovery under Section 1782 must satisfy three threshold requirements.  The petitioner must be an “interested person;” the target of the discovery must “reside or [be] found in” the judicial district where the application is filed; and the requested evidence must be “for use in a proceeding in a foreign or international tribunal.”  If these threshold requirements are met, the court may consider a range of discretionary factors to determine whether discovery is appropriate.  

In Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), the United States Supreme Court established four discretionary factors that courts should weigh when evaluating a § 1782 application: (1) whether the target is a participant in the foreign proceeding; (2) the nature of the foreign proceeding and the receptivity of the foreign tribunal to U.S. judicial assistance; (3) whether the request attempts to circumvent foreign proof-gathering restrictions; and (4) whether the request is unduly intrusive or burdensome.  Following Intel, courts have applied the statute to a range of international proceedings, including civil litigation and insolvency, probate, and family-law proceedings.  

Recent developments

Burden of proving foreign privilege claims: In re Banco Mercantil Del Norte

In In re Banco Mercantil del Norte, S.A., 126 F.4th 926 (4th Cir. 2025), the United States Court of Appeals for the Fourth Circuit addressed a long-simmering split between federal circuits regarding the evidentiary burden that applies to foreign privilege claims in § 1782 proceedings.

Banorte, a Mexican financial institution, sued Cartograf Mexico in Mexico City alleging loan defaults and fraud.  Banorte then filed an ex parte § 1782 application in the District Court for the Eastern District of Virginia seeking discovery from Cartograf USA, the company’s American subsidiary.  The district court granted the application.  On appeal, Cartograf USA argued that, as a matter of Mexican law, its privilege against self-incrimination barred the requested discovery, and that the district court had applied the wrong standard in evaluating its privilege claim.

The Court began by acknowledging that § 1782 “expressly shields privileged material,” including material protected by a foreign legal privilege.² However, the Court also noted a longstanding circuit split as to the applicable burden and standard of proof that applies to claims of non-U.S. privilege in § 1782 proceedings.  The Second, Third, and Fifth Circuits have held that the party opposing discovery bears the burden of proving that the foreign tribunal would not be receptive to the evidence, and that, absent such proof, this factor weighs in favor of granting discovery.³ To carry that burden, the Second and Fifth Circuits have held that the party opposing discovery must submit “authoritative proof,” such as “a forum country’s judicial, executive[,] or legislative declarations that specifically address the use of evidence gathered under foreign procedures[.]”⁴ In contrast, the First, Seventh, and Eleventh Circuits have declined to impose a burden-shifting requirement, reasoning that “the Supreme Court gave great flexibility and discretion to district courts in weighing the [Intel] factors,” and thus “did not intend to place a burden on either party.”⁵ Under that approach, “[b]oth parties are free to argue their positions and submit evidence in support thereof, and the district court is then to consider all of that in weighing [the Intel] factors.”⁶

The Banorte Court sided with the Second, Third, and Fifth Circuits, and held that the party asserting a foreign privilege bears the burden of establishing that privilege.  However, the court declined to adopt the “authoritative proof” standard, leaving open the question of whether respondents would need to satisfy that heightened threshold in future cases.  It was unnecessary to decide that question because Cartograf USA’s evidence—a legal opinion from a Mexican law firm that conceded sparse judicial precedent—was insufficient evidence in any event.⁷

The Court’s approach to the burden of proof aligned in notable ways with the approach taken in U.S. domestic discovery practice.  Under established precedent, a party objecting to discovery on privilege grounds bears the burden of establishing the existence, applicability and scope of the privilege.  Broadly speaking, the presumption is in favor of discovery; a person objecting must prove that discovery is inappropriate.  The same norms will now guide 1782 discovery in the Fourth Circuit.

The practical implications of this ruling are also significant.  A 1782 petitioner who expects to face foreign privilege claims should carefully consider whether the petition can be filed in a circuit that imposes the burden of proof on the respondent.  And—given the demand for evidence to prove or refute the existence and scope of the privilege—it will be prudent for both parties to engage foreign law experts early in the proceeding, no matter which circuit the petition is filed in.

Cross-proceeding use of discovery: Novalpina Capital Partners v. Treo Asset Management

In Novalpina Capital Partners I GP S.A.R.L v. Treo Asset Management LLC, 149 F.4th 1092 (9th Cir. 2025), the Ninth Circuit considered whether documents produced under § 1782 may be used in proceedings other than those identified in the original petition.

Novalpina, the former general partner of a Luxembourg investment fund, filed a § 1782 petition in the District of Oregon seeking documents for use in two non-U.S. proceedings: ongoing “Veto Right Litigation” in Luxembourg and a contemplated—but not yet commenced—fraud suit.  After the district court granted the § 1782 petition, the parties negotiated a protective order that allowed produced material to be used in “litigation relating to the events described in the [§ 1782 petition].”  Novalpina subsequently used the documents in other proceedings not identified in the petition, including in “Summons 4” litigation in Luxembourg.  Treo moved for reconsideration of the order granting the application, or modify the Court’s protective order to restrict use to the two proceedings identified in the original application.

On appeal, the Ninth Circuit rejected the argument that § 1782 discovery must be limited to use in the specific foreign proceedings identified in the petition, and concluded that documents produced under § 1782 may be used in proceedings other than those identified in the petition, absent an order to the contrary by the court.

The court reasoned that nothing in the statute’s text limits the use of produced materials, and that the legislative history reflects a pattern of continuous expansion of the assistance that federal courts are empowered to provide to foreign tribunals.⁸ The Court drew an analogy to domestic discovery practice—noting that the Federal Rules of Civil Procedure do not automatically prohibit a litigant from using discovery obtained in one case in a “wholly separate proceeding.”⁹ Rather, parties are left to negotiate such restrictions among themselves, without court supervision.  Additionally, “just as they can for discovery obtained via § 1782, district courts can enter protective orders for discovery obtained in domestic litigation that prohibit the use of that discovery in other proceedings.”¹⁰

Absent a confidentiality agreement or protective order, Novalpina will now allow evidence obtained under § 1782 to be deployed across multiple foreign proceedings without any additional court authorization.  By analogizing to domestic discovery practice, the Court conferred broader discovery powers on a 1782 petitioner than would be available in many other jurisdictions, where discovery obtained in one proceeding is not typically available for use in other proceedings (e.g., in common law systems governed by the “implied undertaking”).  For respondents, the decision heightens the importance of requesting protective orders or conditions limiting cross-proceeding use at the time the § 1782 application is granted.     

Conclusions and practical takeaways

Taken together, the Banorte and Novalpina decisions illustrate a clear trend toward synthesizing § 1782 with the norms of U.S. discovery practice—placing the burden of proving privilege on the party asserting it, and permitting broad, cross-proceeding use of discovery materials absent a contrary court order.  For international litigants, these decisions underscore the importance of proactive strategic planning: petitioners should give careful thought to forum selection and the scope of any protective order, while respondents must act early to secure meaningful limitations on the use and dissemination of evidence obtained under the statute.

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Notes

1  28 U.S.C. § 1782(a).
2  Id. at 933 (internal citations omitted). 
3  Id., citing See Euromepa, 51 F.3d at 1100; Ecuadorian Plaintiffs, 619 F.3d at 378; In re Chevron Corp., 633 F.3d 153, 162-63 (3d Cir. 2011).
4  Id., citing Euromepa, 51 F.3d at 1100; Ecuadorian Plaintiffs, 619 F.3d at 378.
5  Id., citing In re Schlich, 893 F.3d 40, 50 (1st Cir. 2018); Dep’t of Caldas v. Diageo PLC, 925 F.3d 1218, 1223 (11th Cir. 2019); Venequip, S.A. v. Caterpillar Inc., 83 F.4th 1048, 1058 (7th Cir. 2023).
6  Id. at 934, citing In re Schlich, 893 F.3d at 50 (citations omitted).
7  Id. at 934-5.
8  Id. at 1102 (internal citations omitted).
9  Id. at 1103.
10  Id.