28 U.S.C. §1782: How French Litigants Can Obtain Evidence in the United States

Executive Summary

The extraterritorial reach of U.S. litigation is often described as a risk for European companies.

Sometimes, it can also be an opportunity.

28 U.S.C. §1782 allows a U.S. federal district court, under certain conditions, to order a person or company located within its jurisdiction to provide testimony, documents, or other evidence for use in proceedings before a foreign or international tribunal.

A party involved in litigation before a French court may therefore be able to obtain evidence located in the United States even when French procedural tools would not provide equivalent access.

This can make §1782 a powerful instrument in international litigation.

However, it is not automatic.

The U.S. court retains discretion, and the Supreme Court has established factors allowing judges to refuse or narrow applications that are intrusive, burdensome, designed to circumvent foreign evidence rules, or otherwise inappropriate.

For legal departments and litigation teams, the key lesson is strategic: evidence should be mapped internationally before proceedings begin.

Knowing where evidence is located can materially change the balance of a dispute.

Quick Answer: What Is 28 U.S.C. §1782?

28 U.S.C. §1782 is a U.S. federal statute allowing judicial assistance for proceedings outside the United States.

A federal district court may order a person who resides or is found in its district to:

• provide testimony;
• give a statement;
• or produce documents or other evidence

for use in a proceeding before a qualifying foreign or international tribunal.

An application may be made by the foreign tribunal itself or by an “interested person,” which can include a litigant.

For a French company involved in court proceedings in France, §1782 may therefore provide access to evidence held by a person or entity located in the United States.

Why §1782 Matters for French Litigation

French litigation does not generally reproduce the breadth of U.S. discovery.

A party may know that relevant documents exist but have limited procedural tools to obtain them from a third party abroad.

Imagine a French commercial dispute involving:

• a U.S. parent company;
• a technology provider;
• an investment fund;
• a bank;
• a former executive now living in the United States;
• or a U.S.-based third party holding relevant emails or transaction records.

If the person holding the evidence resides or is found within a U.S. federal district, §1782 may provide a direct procedural route.

The irony is important.

The same U.S. discovery culture often viewed by European companies as intrusive can become a useful source of evidence for a French proceeding.

The Main Statutory Conditions

A §1782 application begins with several threshold requirements.

The target must reside or be found in the district

The federal court must have the necessary connection with the person from whom evidence is sought.

The statute is not a general mechanism for forcing entities located anywhere in the world to produce evidence.

The evidence must be for use in a qualifying proceeding

The requested evidence must be intended for use before a foreign or international tribunal falling within the statute.

A proceeding does not always need to have formally started, but it must be within reasonable contemplation.

The applicant must qualify

The request can come from the foreign tribunal itself or from an “interested person.”

A litigant in the foreign proceeding will generally satisfy this requirement.

Meeting these statutory conditions does not guarantee success.

The federal court still retains discretion.

The Intel Factors

The U.S. Supreme Court's 2004 decision in Intel Corp. v. Advanced Micro Devices, Inc. established the central framework used by courts when deciding whether to grant §1782 assistance.

Several considerations are particularly important.

Is the evidence holder already a party to the foreign proceeding?

If the target is already before the French court, the U.S. judge may consider that the French court itself is better placed to order production.

Section 1782 can be especially useful where the evidence is held by a third party outside the foreign court's jurisdictional reach.

Would the foreign court accept the evidence?

The U.S. judge may consider the nature of the foreign proceedings and whether the foreign tribunal would be receptive to U.S. judicial assistance.

Is the request attempting to circumvent foreign restrictions?

A federal court can look at whether §1782 is being used to bypass evidence-gathering restrictions or policies in the foreign jurisdiction.

This does not mean the evidence must be discoverable under French procedural law.

The Supreme Court expressly rejected such a strict requirement.

The question is more nuanced: is the application an improper attempt to evade a legitimate foreign rule?

Is the request excessively intrusive or burdensome?

Broad requests can be denied or narrowed.

A well-designed §1782 request should therefore identify the relevant evidence precisely and explain why it matters to the French proceedings.

A Major Limit: Private Arbitration

Section 1782 is not available for every form of international dispute resolution.

In ZF Automotive US, Inc. v. Luxshare, Ltd. in 2022, the U.S. Supreme Court held that the expression “foreign or international tribunal” covers governmental or intergovernmental adjudicative bodies.

Private commercial arbitral tribunals do not qualify merely because they conduct international arbitration.

This distinction is essential.

A party preparing proceedings before a French commercial court may potentially use §1782.

A party involved solely in private commercial arbitration cannot simply assume that the same mechanism is available.

What Evidence Can Be Requested?

Depending on the case, a §1782 application may seek:

• emails;
• corporate records;
• transaction documents;
• communications with third parties;
• financial records;
• testimony;
• witness statements;
• technical records;
• or other evidence located in the United States.

The scope will depend on the facts and the federal court's assessment.

Applicable privileges remain protected.

The statute expressly provides that a person cannot be compelled to produce evidence in violation of a legally applicable privilege.

Why §1782 Can Change Litigation Strategy

Cross-border disputes are often approached from the perspective of applicable law and jurisdiction.

Evidence geography deserves equal attention.

Before litigation begins, counsel should ask:

Where are the documents?

Who controls them?

Where are the relevant witnesses?

Which subsidiaries or service providers hold information?

Are relevant records located in the United States?

Could a third party have evidence that the opposing party cannot or will not produce?

These questions can materially affect litigation strategy.

A French dispute may have a decisive evidentiary connection to the United States even when U.S. substantive law has nothing to do with the case.

Example

Consider a French company suing a former distributor before the Paris Commercial Court.

The company believes that a U.S.-based payment provider holds transaction records showing undisclosed payments between the distributor and another business.

The payment provider is not a party to the French case.

If the statutory requirements are satisfied, the French claimant may consider applying to the appropriate U.S. federal district court under §1782 for production of those records.

The U.S. judge will then assess both the statutory requirements and the discretionary factors.

The French court does not become subject to U.S. discovery.

Instead, U.S. judicial assistance is being used to obtain evidence located within the United States for the French case.

Relationship With French Evidence Rules

Section 1782 does not erase French procedural law.

The evidence must still be usable within the French proceeding.

Counsel should therefore consider:

• admissibility;
• confidentiality;
• privilege;
• trade secrets;
• procedural fairness;
• and how the evidence will be introduced before the French court.

The existence of a U.S. production order does not guarantee that every document obtained will automatically determine the French case.

The two procedural systems must be coordinated.

What About the French Blocking Statute?

The French Blocking Statute is primarily relevant when evidence gathering or disclosure affects information located in France or persons subject to the French framework.

Section 1782, by contrast, targets a person residing or found within the relevant U.S. federal district.

This geographic distinction is important.

A §1782 strategy should not be used as an indirect method for circumventing French restrictions on obtaining protected information from France.

The Intel factors expressly allow U.S. courts to examine whether an application is designed to circumvent foreign proof-gathering restrictions or policies.

For a detailed analysis of the defensive side of cross-border evidence requests, see:

“Cross-Border Evidence Requests: How French Companies Should Handle U.S. Discovery and Foreign Disclosure.”

Practical Checklist Before Filing a §1782 Application

1. Identify the evidence

Determine precisely what testimony or documents are needed.

2. Locate the evidence holder

Confirm that the target resides or is found within the relevant federal district.

3. Define the foreign proceeding

Explain the French proceeding and how the requested evidence will be used.

4. Establish standing

Show why the applicant qualifies as an interested person.

5. Analyze the Intel factors

Anticipate arguments concerning foreign receptivity, circumvention, burden, and whether the target participates in the French proceedings.

6. Narrow the request

Avoid requesting categories broader than necessary.

7. Review privilege and confidentiality

Identify potentially privileged, sensitive, or trade-secret material.

8. Coordinate with French counsel

Ensure that the evidence can be effectively introduced and used in the French proceeding.

The Strategic Lesson for Legal Departments

Legal teams often think about evidence only after litigation has started.

Cross-border disputes reward earlier preparation.

Document location should be part of litigation mapping from the beginning.

A potentially decisive document may be unavailable through ordinary French procedural mechanisms but obtainable in the United States.

Conversely, evidence production may create conflicts with French sovereignty, data protection, or confidentiality rules when information is located in France.

The two perspectives are complementary.

International litigation therefore requires both a defensive question:

“How do we protect information when a foreign party requests it?”

and an offensive question:

“Where can we lawfully obtain evidence that strengthens our own case?”

Section 1782 belongs to the second category.

Final Analysis

28 U.S.C. §1782 illustrates an important reality of international disputes: procedural extraterritoriality is not always a threat.

It can also be a strategic tool.

A French litigant may be able to use U.S. federal courts to obtain evidence located in the United States for proceedings in France.

The mechanism is powerful precisely because it provides access to evidence beyond the normal territorial reach of the French court.

However, it remains controlled.

The statutory conditions must be satisfied.

The federal judge retains discretion.

Intrusive or burdensome requests can be limited.

Foreign procedural policies must be respected.

Private commercial arbitration is outside the statute's ordinary scope following ZF Automotive.

Used carefully, §1782 can change the evidentiary balance of an international dispute.

The central lesson is simple:

In cross-border litigation, where the evidence is located can be as strategically important as what the evidence proves.