In Intel Corp. v. Advanced Micro Devices, Inc. (2004), the U.S. Supreme Court made clear that a district court is not required to grant § 1782 discovery just because the statute's requirements are met. Instead, the court weighs four factors. Understanding them is the difference between an application that gets authorized and one that gets quashed.
Factor 1 — Is the target a participant in the foreign proceeding?
This is often the most important factor. If the person who holds the evidence is not a party to your foreign case — a bank, an accountant, a vendor, a tech platform — the foreign court usually has no power to make them produce it. That gap is exactly what § 1782 exists to fill, so it weighs in your favor. By contrast, if the target is already a party abroad, the foreign court can typically order discovery itself, which weighs against using § 1782.
Takeaway: applications aimed at non-party witnesses and institutions tend to be the strongest.
Factor 2 — Is the foreign tribunal receptive to U.S. assistance?
Courts consider whether the foreign court or government body would welcome the evidence or resent the intrusion. In most cases there is no sign of hostility, and this factor is neutral or favorable. It cuts against an applicant only where there is real evidence the foreign tribunal does not want the help. A declaration from foreign counsel confirming the evidence is usable abroad goes a long way here.
Factor 3 — Is the request an attempt to circumvent foreign limits?
The court asks whether the application is a good-faith request or an effort to get around the foreign jurisdiction's proof-gathering rules or other policies. Using § 1782 because the evidence simply sits in the United States is fine. Using it to grab material a foreign court has already refused, or to dodge a clear foreign restriction, is not. Framing your request as a legitimate complement to the foreign proceeding — not an end-run around it — keeps you on the right side of this factor.
Factor 4 — Is the request unduly intrusive or burdensome?
Overbroad, vague, or harassing requests get cut down or denied; narrow, well-targeted ones get granted. This is the factor most within your control. Specific document categories, defined date ranges, named accounts or custodians, and a clear tie to the foreign issues all help. If a request looks like a fishing expedition, expect a motion to quash to succeed in trimming it.
How the factors fit together
No single factor is decisive; the court weighs them together. But the pattern is clear: the strongest § 1782 applications target a non-party who holds the evidence, rest on a credible declaration about a receptive foreign proceeding, are plainly good-faith, and ask for something narrow and specific. Build the application around those points and you are positioned to win — both at the initial ex parte stage and on any later motion to quash.
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This article provides general information about the Intel factors under 28 U.S.C. § 1782 and does not constitute legal advice or create an attorney-client relationship. Courts apply these factors to the specific facts of each case, and outcomes vary by district. Prior results do not guarantee a similar outcome. For advice, request a consultation.