Picture your client telling you they were considering starting a litigation, but that they did not yet have all the facts needed for you to prepare a pleading. Now add the wrinkle that the action would need to be forumed in a foreign country, one with discovery rules narrower than those in the United States, and then the kicker, that some of the relevant documents are held by third parties outside of the planned litigation forum. Although your initial reaction might be that your client is out of luck, 28 U.S.C. § 1782, which allows foreign litigants (or soon-to-be litigants) to obtain discovery in the United States, under U.S. discovery rules, for use in a pending or contemplated foreign proceeding, might offer some help.
Under Section 1782, a federal courts can grant an application for discovery in aid of a foreign proceeding (or planned proceeding) if the applicant: (a) has an interest in the foreign proceeding; (b) the discovery will be used in that foreign proceeding; and (c) the target of the discovery request resides in the judicial district where the request is made. However, federal courts can deny the discovery request, even when those statutory factors are met, based on purely discretionary factors such as whether the target is a party to the litigation, whether the applicant is attempting to circumvent either U.S. or foreign proof gathering restrictions, and whether the requests are found “unduly burdensome.” Although one might think that overworked federal courts would often use those discretionary factors to deny discovery requests in support of litigation pending in a far-flung forum, federal courts routinely grant Section 1782 applications. Two recent decisions—one granting and one denying a Section 1782 application—show just how broad discovery under Section 1782 can be.
In a recent decision, the United States District Court for the District of Massachusetts granted a Section 1782 application for discovery in connection with litigation in Peru, even though it was not clear that the Peruvian court even had jurisdiction over that litigation (the question was, at the time, being reviewed by the Peruvian court). The district court reasoned that it need not wait for the Peruvian court to decide the jurisdictional question, or otherwise assess the applicants’ likelihood of success in Peru— because pursuant to the statute it was sufficient that the litigation was, again at the time, pending in Peru. Although the court also held that the fact that the target of the discovery was a party to the Peruvian litigation weighed against granting the application, since the Peruvian court could, in theory, order the party to produce the requested discovery, the court granted the application anyway, finding that the other discretionary factors weighed in favor of discovery.
In another recent decision, by Magistrate Judge Gabriel W. Gorenstein of the Southern District of New York, the court grappled with an issue that has divided federal courts: whether Section 1782 can be used to compel the production of documents located outside the United States. Magistrate Judge Gorenstein found persuasive a decision of the Eleventh Circuit Court of Appeals, which held that Section 1782 authorizes discovery to full extent allowed by the Federal Rules of Civil Procedure and those rules, in turn, authorize extraterritorial document productions. Accordingly, Magistrate Judge Gorenstein held that the fact that some of the requested documents were located overseas did not bar the discovery sought, as long as the documents were within the control of a discovery target located in the U.S.—in this case, a New York-based law firm with a branch office in Russia.
Magistrate Judge Gorenstein nonetheless denied the discovery application because, among other things, issues of attorney-client privilege and whether the documents sought must be kept confidential pursuant to contract would be governed by the law of the country in which the documents were located, Russia. The court concluded that it was unclear how Russian law would apply to these documents, and that requiring disclosure could potentially force the target of the discovery application to violate Russian law. Moreover, the court worried that permitting discovery under these circumstances might encourage Russian courts to force U.S. firms to violate U.S. disclosure laws under similar circumstances. The magistrate judge also expressed concern that ruling in the applicants’ favor might discourage foreign companies from hiring the overseas offices of American firms.
Magistrate Judge Gorenstein’s decision is being challenged by the Section 1782 applicants before District Judge George B. Daniels. District Judge Daniels’ decision as to whether to accept or overrule Magistrate Judge Gorenstein will be closely watched, as it could have a major impact on whether and how litigants can obtain documents via Section 1782 from U.S. entities holding relevant documents in branch offices overseas.
 28 U.S.C. § 1782(a). In addition to allowing discovery in connection with pending foreign proceedings, Section 1782 provides for pre-litigation discovery similar to that found in rules applicable to domestic litigations. See, e.g., Federal Rule of Civil Procedure 27; N.Y. CPLR § 3102(c).
 Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 264-65 (2004).
 In re Application of Peruvian Sporting Goods S.A.C, et al., Case No. 18-mc-91220 (D. Mass. Dec. 7, 2018) (Dkt. No. 40). The decision was a report and recommendation from Magistrate Judge Jennifer C. Boal, which was accepted and adopted by District Judge Daniel J. Casper on February 5, 2019 (Dkt. No. 50).
 Id. at 9.
 Id. at 11-12.
 In re Application of Hulley Enterprises, Ltd., et al., 18-mc-435 (S.D.N.Y. Feb. 19, 2019) (Dkt. No. 48).
 Id. at 19.
 Id. at 19-20 (citing Sergeeva v. Tripleton Int’l Ltd., 834 F.3d 1194, 1200 (11th Cir. 2016)).
 Id. at 33-35.