Best Practices for Foreign Attorney Affidavits in Support of Section 1782 Applications
For petitioners seeking evidence from the United States for use in litigation or other proceedings abroad, a well-drafted foreign attorney affidavit can be one of the most important (albeit not explicitly required) components of a Section 1782 application. The affidavit gives the U.S. federal court the foreign-law and procedural context it needs to understand why the requested evidence matters, how it will be used, and whether the foreign proceeding is sufficiently concrete to justify judicial assistance.
That role is particularly important where the foreign proceeding has not yet started. In such cases, the courts consider the retention of foreign counsel as an indication that the anticipated foreign proceeding is "reasonably contemplated." But this is not sufficient to meet this standard. Courts expect applicants to provide objective evidence that the anticipated proceeding is more than a mere “twinkle in counsel's eye." A detailed declaration from foreign counsel can be highly effective in establishing that showing.
If you need more help in preparing and filing your Section 1782 application, contact us to set up a call.
Explain the Foreign Proceeding with Specificity
The first task of the foreign attorney affidavit should be to establish precisely what foreign proceeding exists—or is being contemplated. The affidavit should identify the country and jurisdiction, the court, tribunal, or governmental body before which the matter is or will be brought, and an assigned case number for existing proceedings. Although the affidavit should read more informative than argumentative, it should provide detailed information, such as: (1) the parties or anticipated parties; (2) the nature of the claims or proceedings; (3) the procedural posture; (4) the anticipated timing of the proceeding (or of commencement of the proceedings); and (5) the relationship between the requested U.S. discovery and the proceeding.
"Threadbare" representations and "most general identification" of potential claims are not enough. A foreign attorney declaration is most useful when it functions as an evidentiary bridge between the foreign proceeding and the U.S. discovery request. A helpful affidavit will outline the basis for the foreign proceeding and the contemplated causes of action, as well as an analysis of the underlying factual background and how it provides a basis for liability in the context of such causes of action. Most importantly, the affidavit should highlight that the discovery requested would provide admissible evidence for use in the foreign proceeding.
Is the Evidence "for Use" in a Foreign Proceeding?
Section 1782 allows an "interested person" to seek discovery "for use in a proceeding in a foreign or international tribunal." "[T]o distinguish an application from a 'fishing expedition' and for discovery to be of use, it must be able to be used for 'some advantage' in the related foreign proceeding." For discovery to be able to be used for “some advantage” in the related foreign proceeding, the materials requested need merely be for use “at some stage of a foreign proceeding.” This does not necessarily require foreign counsel to establish that the evidence is indispensable. The declaration should therefore connect each significant category of requested discovery to an identifiable use in the foreign proceeding.
The affidavit should thus answer a simple question:
"What will petitioner do with this evidence?"
For example:
use bank records to establish the movement or disposition of assets;
use corporate records to establish ownership or control;
use communications to establish knowledge or intent;
use transactional documents to trace transfers between related entities;
use witness testimony to establish facts that cannot otherwise be established in the foreign proceeding; or
use the evidence to identify additional defendants, assets, transactions, or causes of action.
A particularly effective therefore affidavit maps the requested discovery to the elements of the actual or contemplated claims.
In making this showing, the affidavit will necessarily also address whether petitioner is an "interested person," meaning petitioner has some role in the actual or contemplated foreign proceeding. It is most important to explain the applicant's relationship to the foreign proceeding where that relationship is not self-evident.
For example, the petitioner could be (or contemplate becoming):
a plaintiff;
a defendant;
a claimant;
a judgment creditor;
the victim of a crime;
a liquidator;
an insolvency representative;
a trustee; or
another person with a legally recognized interest in the proceeding.
This part can be particularly important in asset-recovery matters, insolvency proceedings, and investigations in which the applicant's precise procedural status may differ from the conventional plaintiff/defendant model.
Is a Proceeding Reasonably Contemplated?
If a foreign proceeding has yet to be initiated, the foreign attorney affidavit can provide the Court facts supporting a finding that the proceedings are nevertheless "reasonably contemplated."
Useful facts to support such finding may include:
retention of foreign counsel;
pre-action correspondence;
pre-suit demands
preparation of pleadings;
commencement of an investigation;
preservation or collection of evidence;
identification of potential defendants;
legal analysis of potential claims;
statutory or contractual pre-action requirements;
settlement negotiations that have failed;
a decision to commence proceedings following receipt of particular evidence; or
a specific anticipated filing date or procedural timetable.
Address Receptivity to U.S.-Obtained Evidence
One of the discretionary considerations Courts address when reviewing a Section 1782 application is "the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance."
Foreign counsel can be particularly useful here.
Where appropriate, the affidavit should explain:
whether the foreign tribunal may receive evidence obtained through U.S. judicial process;
whether there is any restriction on using evidence obtained abroad;
whether the tribunal can consider documents or testimony obtained through § 1782;
whether the evidence must be authenticated or legalized;
whether any particular procedural step is necessary before the evidence can be introduced; and
whether counsel is aware of any objection by the foreign tribunal to the use of U.S.-obtained evidence.
The Supreme Court has made clear that § 1782 does not contain a categorical foreign-discoverability requirement. But receptivity remains relevant to the court's discretionary decision. A short, affirmative statement from foreign counsel that the foreign tribunal can receive and will consider the evidence may therefore be valuable.
Be Precise about Foreign Discovery Restrictions
Foreign counsel should also address whether the application is attempting to circumvent foreign proof-gathering restrictions.
The affidavit should not simply state that "there are no restrictions under foreign law." If restrictions exist, counsel should explain them accurately (or at a minimum be prepared to address them on reply).
For example:
Is discovery available from the respondent directly?
Can the foreign court compel a U.S.-based nonparty?
Are particular categories of documents subject to confidentiality rules?
Are there restrictions on pre-action discovery?
Are there blocking statutes?
Are there special rules governing bank, tax, or personal data?
Does the foreign court have jurisdiction over the U.S. respondent?
The objective should be transparency, not advocacy: explain what the foreign legal system permits, what it does not permit, and why U.S. discovery is nevertheless appropriate.
Explain the Relevance of the Evidence by Category
Foreign counsel should resist the temptation to describe the requested evidence in generic terms. A statement such as "the documents are relevant to the proceedings" provides relatively little assistance.
Addressing each category of evidence sought in part is stronger. An affidavit may explain:
"The requested banking records are relevant because the foreign proceedings concern whether assets belonging to the claimant were transferred to entities controlled by the respondent. The records are expected to identify the accounts receiving those transfers and the dates and amounts of the relevant transactions."
This level of specificity helps address both the statutory "for use" requirement and potential objections that the application constitutes a fishing expedition. The objective is not to prove the foreign case through the affidavit. It is to demonstrate a rational evidentiary connection between the U.S. discovery and the foreign proceeding.
Coordinate the Affidavit Closely with the Subpoena
The affidavit and proposed subpoena should tell the same story.
A common weakness is a carefully drafted declaration describing a narrow evidentiary need while the proposed subpoena seeks years of communications, all financial records, or every document concerning a broad subject.
That disconnect can invite an objection that the request is unduly intrusive or burdensome—one of the discretionary factors courts consider in relation with Section 1782 petitions.
Foreign counsel should review the proposed requests in the subpoena and be able to explain, category by category:
Why this information? Why this custodian? Why this timeframe? Why this proceeding?
If those questions cannot be answered succinctly, the discovery request may need to be narrowed.
A strong foreign attorney affidavit does more than confirm that litigation exists overseas. It gives the U.S. district court a practical roadmap: what the foreign proceeding is, why it is real, what claims are at issue, what evidence is needed, how that evidence will be used, and why U.S. judicial assistance is appropriate.
For foreign counsel, the best practice is to draft the affidavit together with U.S. counsel and the proposed subpoena—not as an afterthought once the application has already been prepared. When the foreign proceeding, the evidence sought, and the proposed discovery are presented as a coherent evidentiary chain, the affidavit can do much more than satisfy a formal requirement: it can provide the factual foundation for the court's exercise of its Section 1782 discretion.
More questions about Section 1782 petitions? Contact us to schedule a consultation.
CITED AUTHORITIES:
In re N3RVE, LLC, 2026 WL 1991788, at *4 (S.D.N.Y. June 24, 2026).
In re of Lucille Holdings Pte. Ltd., 2022 WL 1421816, at 14 (D.D.C. May 5, 2022).
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