Ohio Court Ruling Highlights Judicial Discretion To Grant Or Deny American Discovery For Cross-Border Litigation

• Published date: 05 August 2025
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution, Court Procedure, Civil Law
• Law Firm: Taft Stettinius & Hollister
• Author: Michael Pomeranz

People and businesses located outside of the United States have a powerful tool to discover information, located in the United States, that may assist them with foreign litigation. More than 150 years ago, Congress authorized federal courts to issue discovery in aid of foreign legal proceedings. Section 1782, as the statute is known today, grants federal judges considerable discretion to direct companies in the United States to produce documents or provide other potentially helpful information to foreign litigants. 28 U.S.C. ' 1782. A recent Southern District of Ohio ruling illuminates how judges exercise that considerable discretion when deciding a Section 1782 application.

On June 11, Southern District of Ohio Magistrate Judge Chelsey Vascura denied Zhanel Shayakhmetova's application to obtain discovery from U.S. based Boulder International Investments, LLC (Boulder) for use in a proceeding pending in the United Kingdom. In re Shayakhmetova, No. CV 2:25-MC-12, 2025 WL 1651945 (S.D. Ohio June 11, 2025) (slip copy).

In her application, Shayakhmetova alleged that Boulder, along with nine other defendants in the U.K. proceeding, acted to block Shayakhmetova's attempt to gain title to an inherited share of a partnership left by her father. Id. at *1. Shayakhmetova claimed that the sought discovery is necessary "(1) to quantify her half of the Partnership assets, and (2) to trace those assets." Id.

Although most (approximately four out of five) applications under Section 1782 are granted, denials like those in In re Shayakhmetova underscore the importance of understanding how federal judges exercise their considerable discretion in considering those applications. This bulletin explains the inner workings of Section 1782, including the factors leading to the denial of Shayakhmetova's Section 1782 application in In re Shayakhmetova.

Background

Compared to many foreign courts, U.S. courts allow for broad discovery practices. Federal Rule of Civil Procedure 26, governing the rules of discovery, provides that any party may seek discovery on any nonprivileged matter that is relevant to any party's claim or defense, so long as it is proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1). This rule allows for the discovery of categories of documents related to the proceeding, contrasting many foreign court requirements that only specific, named documents may be discovered. Notably, American courts can compel discovery of information that itself may not be admissible as evidence. Given the rules favoring liberal discovery, contested commercial lawsuits in the United States can result in hundreds of thousands of documents produced in discovery. And parties can be entitled to depose witnesses (question them under oath) and interrogate (ask written questions to be answered fully and verified under oath) individuals as well.

Section 1782, derived from statutes dating back to as early as 1855, codified the long-standing practice of federal court cooperation with foreign governments to compel discovery from U.S. persons. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 247 (2004). However, Section 1782 also created a new process for non-governmental foreign persons to obtain discovery from U.S. persons for use in foreign proceedings.

Under the statute, a foreign tribunal may seek discovery of a U.S. person for use in a proceeding in a foreign or international tribunal, either by making a request or by issuing a letter rogatory. Critically, Section 1782 does not only empower a foreign tribunal. Instead, any "interested party" may also seek U.S. discovery for use in a foreign tribunal (as explained further below).

An interested person may obtain an order to seek discovery by submitting an application to the specific federal District Court where the party from whom discovery is sought resides. For a business, the place of residence is usually their headquarters or place of incorporation. See, e.g., In re Path Network, Inc., 703 F.Supp.3d 1046, 1060 (N.D. Cal. Nov. 22, 2023). Applicants usually apply ex parte, without notifying the target of the contemplated discovery. (Notice comes later, as further explained below.)

Furthermore, a foreign proceeding need not be ongoing for an application to be made under Section 1782. Instead, an interested party may also submit an application if there is merely a reasonable contemplation of a foreign proceeding, even if such foreign proceeding has yet to be filed. Intel, 542 U.S. at 258.

Before granting an application, the District Court must apply two sets of factors to determine whether to approve the application. In re Path Network, 703 F.Supp.3d at 1059. Courts refer to the first set of factors as statutory. Id. If an application satisfies the statutory factors, then the Court must consider the second set of factors, the so-called discretionary factors. Id.

Appellate courts evaluate lower-court judgments on both sets of factors for abuse of discretion. In re Naranjo, 768 F.3d 332, 347 (4th Cir. 2014). In other words, each particular federal judge reviewing a 1782 application enjoys considerable discretion in applying his or her judgment. For foreign parties looking to submit an application under Section 1782, sophisticated local counsel can be paramount to successfully navigating the application process.

The Statutory Factors

After receiving an application under ' 1782, the district court must first determine whether the applicant has met four statutory requirements: (1) the discovery is sought from a person residing or found in the district of the district court where the application is made; (2) the discovery is "for use" in a proceeding; (3) that proceeding is in a "foreign or international tribunal"; and...