28 U.S.C. § 1782 is a fast-moving area. Since the Supreme Court's 2022 decision in ZF Automotive, federal courts have spent two years working out exactly where the new line falls — especially for arbitration — and a notable wave of appellate rulings landed in 2024 and 2025. This is a plain-English roundup of the developments that matter.
Quick refresher: what ZF Automotive decided
In ZF Automotive US, Inc. v. Luxshare, Ltd. (2022) — consolidated with AlixPartners v. Fund for Protection of Investors' Rights — the Supreme Court held that a "foreign or international tribunal" under § 1782 means a governmental or intergovernmental body. That ended § 1782's use for private commercial arbitration. But the Court left one question open: an investor-state arbitration panel might qualify if the relevant nations "imbued" it with governmental authority. Courts have spent the years since testing that opening.
The big one: the arbitration question reached the Court of Appeals
The most important post-ZF development is that the investor-state question has now been answered at the appellate level — and the door is closing:
- Webuild S.P.A. v. WSP USA Inc. (2d Cir. July 19, 2024) — the first federal Court of Appeals decision to apply ZF to investor-state arbitration. The Second Circuit held that an ICSID tribunal (constituted under the Italy–Panama investment treaty) is not a "foreign or international tribunal," finding it "virtually the same" as the ad hoc panel the Supreme Court had rejected. The practical takeaway: § 1782 is now likely unavailable for most ICSID arbitrations, at least in the Second Circuit.
- The court was careful not to make this categorical — it suggested the result might differ if, for example, the arbitrators were drawn from ICSID's official Panel. So some narrow arguments survive.
The district courts that set this up reached the same conclusion: In re Webuild S.P.A. (S.D.N.Y. 2022) and In re Alpene Ltd. (E.D.N.Y. Aug. 2023, a China–Malta treaty arbitration).
The 2025 wave: circuits refine the rules
A cluster of 2025 appellate decisions sharpened how § 1782 plays out in practice:
- Forum-selection clauses can defeat discovery — Banoka S.à.r.l. v. Elliott Mgmt. Corp. (2d Cir. 2025): if the parties agreed to resolve disputes in a foreign forum, that choice can weigh against granting § 1782 discovery (an application of the Intel "circumvention" factor). Careful contract drafting can limit exposure to U.S. discovery.
- The objector bears the foreign-privilege burden — In re Banco Mercantil del Norte, S.A. (4th Cir. 2025): a party invoking a foreign privilege to resist § 1782 must prove it (joining the Second, Third, and Fifth Circuits), though the Fourth Circuit declined to adopt a rigid standard.
- Produced documents can be reused — Novalpina Capital Partners I GP v. Read (9th Cir. 2025): material obtained under § 1782 may be used in other proceedings not named in the original petition unless a protective order says otherwise. Respondents should negotiate protective orders early and narrowly.
- Unmasking anonymous foreign posters — In re Gliner (9th Cir. 2025): § 1782 can be used to identify anonymous online speakers where there's no indication the target holds U.S. constitutional protections.
- "Found in the district" means personal jurisdiction — Absolute Activist Value Master Fund Ltd. v. Devine (11th Cir. 2025): a target is "found" in the district where the court has personal jurisdiction over it (aligning with the Second Circuit).
A procedural point worth knowing
In re Amgen (3d Cir. June 2025) held that an order granting § 1782 discovery — but not yet defining its scope — is not "final" and so cannot be appealed immediately. For a respondent hoping to appeal before producing, timing and finality now matter.
Where § 1782 is still going strong
None of this dents § 1782's core. It remains a powerful tool for foreign court cases, government and regulatory proceedings, and asset tracing and judgment enforcement. Two areas are growing:
- Cryptocurrency tracing — litigants are using § 1782 to subpoena U.S.-based exchanges and service providers to follow stolen or misappropriated crypto for a case abroad.
- Continued grants for foreign-court matters — courts keep authorizing § 1782 where the foreign proceeding is a genuine court or government case and the request is well-targeted.
And for the private arbitrations now shut out of § 1782, some practitioners are turning to state-law discovery mechanisms (for example, under New York law) as an alternative.
Issues to watch
- The Unified Patent Court — the EU's new intergovernmental patent court raises a fresh question: could it qualify as a "foreign or international tribunal"? Untested so far.
- Whether other circuits follow Webuild on ICSID — and whether a differently-constituted ICSID panel could still draw a different result.
Wondering how these developments affect your matter?
The right answer depends on your forum, your facts, and the circuit you'd file in. Tell us about it and we'll assess § 1782 in light of the current law.
Request a consultation Read the full guideRelated reading: The Complete Guide to § 1782 · § 1782 & international arbitration · The four Intel factors
This article is a general, plain-English summary of selected developments under 28 U.S.C. § 1782 through 2025 and is current as of its last update. It is not legal advice, does not create an attorney-client relationship, and is not a substitute for researching the current law in the relevant federal district. Case descriptions are simplified; § 1782 law varies by circuit and continues to evolve. Prior results do not guarantee a similar outcome. Get My Discovery is a d/b/a of the Law Office of Derek J. Soltis, attorney admitted in New York (Reg. #5175971). For advice, request a consultation.