What's Changed Since ZF Automotive

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 steady wave of appellate rulings has landed from 2024 into 2026. 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.

2026: privilege and the "for use" limit get sharper

Four 2026 appellate decisions tightened the screws further — shielding real privilege, policing the "for use" requirement, and marking both edges of the "reasonable contemplation" line:

• Privilege can defeat a § 1782 subpoena to a law firm — Kuwait Ports Authority v. Crowell & Moring (D.C. Cir. Jan. 28, 2026). The D.C. Circuit granted an emergency stay of orders that had compelled a law firm to produce documents and testimony (for a Cayman Islands trial). Because § 1782 expressly bars compelling anything "in violation of any legally applicable privilege," the court held that once privilege is established, the burden shifts to the party trying to pierce it — here, limited partners invoking the "fiduciary-beneficiary" (Garner) exception — to show a fiduciary relationship and a mutuality of interest at the time the advice was given. With years of adverse proceedings between the partners and the fund, that showing failed. A strong signal that U.S. courts will closely scrutinize § 1782 subpoenas aimed at outside counsel.
• "For use" can't rest on contingent future proceedings — In re Guryeva-Motlokhov (2d Cir. Mar. 30, 2026). The Second Circuit affirmed quashing § 1782 subpoenas sought by Yulia Guryeva-Motlokhov — heir of a sanctioned Russian businessman — for use in proceedings in Antigua and Russia over the auctioned superyacht Alfa Nero. The asserted use was "too conclusory and speculative": an applicant must show a foreign proceeding that is pending or "within reasonable contemplation," with "reliable indications" it will be brought within a reasonable time, and discovery that depends on "some intervening event" doesn't qualify. The court also confirmed a district court's inherent authority to reconsider and vacate its own earlier § 1782 grant. Read the full Alfa Nero story →
• "Contemplated" foreign litigation counts — In re Orthogen International GmbH, No. 25-1253 (2d Cir. Apr. 1, 2026). Two days after Guryeva-Motlokhov, the same court showed the other side of the line: it rejected the argument that § 1782 reaches only "pending" or "imminent" proceedings and affirmed discovery for contemplated German litigation supported by "some objective indicium that the action is being contemplated." The panel also confirmed that a forum-selection clause naming a German court did not, by itself, bar the application. Read together, Orthogen and Guryeva-Motlokhov bracket the "reasonable contemplation" requirement from both sides. Slip opinion →
• Speculative foreign-privilege objections don't defeat discovery — Youngpoong Corp. v. PedalPoint Holdings, No. 25-3100 (2d Cir. Apr. 22, 2026). In an application for use in South Korean proceedings, the Second Circuit affirmed the § 1782 discovery orders and the denial of PedalPoint's motion to quash: where the record does not actually establish that foreign law privileges the material — "noncommittal" expert affidavits are not enough — the objection fails. The natural pair with Kuwait Ports Authority: established privilege is protected, but a speculative or unsubstantiated privilege assertion will not stop a § 1782 subpoena. Slip opinion →

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.

Related: The Alfa Nero "for use" story · The Intel factors explained · Who can apply & the "for use" rule · Common § 1782 mistakes

This article provides general information about 28 U.S.C. § 1782 and public court decisions; it is not legal advice and does not create an attorney-client relationship. Case descriptions are drawn from public opinions and reporting and may be subject to further proceedings. Section 1782 outcomes are fact-specific and vary by federal circuit. For advice, request a consultation. Get My Discovery is a d/b/a of the Law Office of Derek J. Soltis, attorney admitted in New York (Reg. #5175971).