Date: Apr 4, 2026

Forum-Selection Clauses Do Not Bar 28 U.S.C. § 1782 Discovery and Contract-Damages Counterclaims Fall Outside § 1782’s Scope

Introduction

In In Re: Orthogen Int'l GmbH (2d Cir. Apr. 1, 2026) (summary order), the Second Circuit affirmed orders of the Southern District of New York authorizing discovery under 28 U.S.C. § 1782 sought by Orthogen International GmbH (“Orthogen”) for use in contemplated German litigation against Dr. Douglas Schottenstein and his clinic (together, “Schottenstein”).

The appeal presented recurring § 1782 questions: (1) how “in reasonable contemplation” a foreign proceeding must be for pre-suit discovery; (2) how courts assess foreign tribunals’ receptivity to § 1782 evidence under Intel Corp. v. Advanced Micro Devices, Inc.; (3) whether a mandatory German forum-selection clause forecloses U.S. discovery; (4) whether § 1782’s operation violates equal protection principles; and (5) whether a respondent may pursue contract-damages counterclaims within a § 1782 proceeding (and whether leave to amend must be offered sua sponte).

Although labeled a nonprecedential “summary order,” the decision is notable for synthesizing the Circuit’s current approach to (i) pre-suit § 1782 applications, (ii) the limited role of forum-selection clauses in the discretionary analysis, and (iii) the constrained procedural scope of § 1782 proceedings.

Summary of the Opinion

Pre-suit discovery permitted: The court held Orthogen satisfied § 1782’s “for use” requirement despite the German action not yet being filed, because Orthogen provided “objective indicium” that litigation was reasonably contemplated.
Intel factor two (receptivity): No abuse of discretion where the district court credited evidence that German law posed no bar to using § 1782-obtained materials; the district court did not improperly require “authoritative proof” of admissibility.
Forum-selection clause: A Düsseldorf-only clause did not bar § 1782 discovery; at most it is a discretionary consideration, not dispositive.
Equal protection challenge rejected: Applying § 1782 to allow pre-suit discovery easily survived rational-basis review given Congress’s comity-based objectives.
Counterclaim dismissal affirmed: The court expressed skepticism that counterclaims belong in a § 1782 proceeding at all; in any event, the proposed contract-damages theory turned on unsettled German-law issues beyond the proper scope of § 1782.
No sua sponte leave to amend required: The district court had no obligation to offer amendment where none was requested, especially for represented parties.

Analysis

1) Precedents Cited

Core statutory framework and standards of review

Banoka S.à.r.l. v. Elliott Mgmt. Corp., 148 F.4th 54 (2d Cir. 2025): The court relied on Banoka for the three statutory prerequisites for § 1782 and for the division of appellate review: de novo review of statutory requirements and abuse-of-discretion review of the Intel discretionary factors. Banoka also supplied the key clarification that a forum-selection clause may be considered but is not an absolute bar.
Fed. Republic of Nigeria v. VR Advisory Servs., Ltd., 27 F.4th 136 (2d Cir. 2022): Cited (via Banoka) for the articulation of § 1782’s statutory elements.
Fund for Prot. of Inv. Rts. in Foreign States v. AlixPartners, LLP, 5 F.4th 216 (2d Cir. 2021): Cited for the articulation of the four Intel factors and their framing in Second Circuit practice.
In re Application for an Ord. Pursuant to 28 U.S.C. 1782 to Conduct Discovery for Use in Foreign Proc., 773 F.3d 456 (2d Cir. 2014): Quoted for the abuse-of-discretion standard—error of law, clearly erroneous factfinding, or outcomes outside the “range of permissible decisions.”
L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2d Cir. 2011): Cited for abuse-of-discretion review of reconsideration motions.

“For use” in a foreign proceeding; pre-suit discovery

Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004): The central anchor. The panel emphasized Intel’s rejection of the rule that proceedings must be “pending” or “imminent,” and reiterated Intel’s formulation: evidence must be “eventually to be used” in a foreign proceeding.
In re Ishihara Chem. Co., 251 F.3d 120 (2d Cir. 2001): Appears as the pre-Intel view Intel rejected (and which Schottenstein urged). Its mention functions as a doctrinal foil: the “pending or imminent” requirement is no longer controlling.
Certain Funds, Accts. and/or Inv. Vehicles v. KPMG, L.L.P., 798 F.3d 113 (2d Cir. 2015): Supplies the operative post-Intel test in this Circuit: an applicant needs more than subjective intent; it must offer “some objective indicium” that litigation is contemplated. The district court’s finding of objective indicia was affirmed.
Hans Smit, International Litigation Under the United States Code, 65 Colum. L. Rev. 1015 (1965): Quoted (through Intel) for the principle that the proceeding need not be pending when discovery is sought.

Foreign receptivity and admissibility concerns (Intel factor two)

In re Application of Johannes Roessner to Take Discovery Pursuant to 28 U.S.C. 1782 in Aid of Foreign Litigants or Proc., No. 21-MC-513, 2021 WL 5042861 (S.D.N.Y. Oct. 29, 2021): Used to support the proposition that, absent identified German legal restrictions, courts may find no impediment to using § 1782 evidence in German proceedings.

Forum-selection clauses in § 1782

Banoka S.à.r.l. v. Elliott Mgmt. Corp., 148 F.4th 54 (2d Cir. 2025): The panel invoked Banoka’s explicit statement that a forum-selection clause is something a district court “may” consider, not a categorical bar, and endorsed the district court’s contextual balancing.

Constitutional review (equal protection principles)

United States v. Amalfi, 47 F.4th 114 (2d Cir. 2022): Cited for the “any conceivable basis” articulation of rational-basis review.
ZF Auto. US, Inc. v. Luxshare, Ltd., 596 U.S. 619 (2022): Cited for § 1782’s “animating purpose” of comity and assistance to foreign governmental adjudicative bodies—used to supply the rational basis for Congress’s scheme.
Jankowski-Burczyk v. I.N.S., 291 F.3d 172 (2d Cir. 2002): Cited for the presumption of constitutionality and the challenger’s burden to negate every conceivable supporting basis.

Limits on § 1782 proceedings; counterclaims; foreign-law prediction

Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d 1095 (2d Cir. 1995): Quoted for the caution that § 1782 should not devolve into disputes requiring prediction of foreign procedural or substantive law; that posture supported dismissing the contract-damages counterclaim as turning on German-law questions beyond § 1782’s scope.

Leave to amend not requested

Horoshko v. Citibank, N.A., 373 F.3d 248 (2d Cir. 2004): Relied upon to reject the argument that a district court must sua sponte offer leave to amend, particularly for parties represented by counsel and where no viable amendment is proffered.

2) Legal Reasoning

A. “For use” does not require a filed case; it requires objective contemplation

The panel’s reasoning follows a two-step doctrinal line: (1) Intel forecloses any hard requirement that a foreign proceeding be “pending” or “imminent”; and (2) Certain Funds, Accts. and/or Inv. Vehicles v. KPMG, L.L.P. imposes a limiting principle to prevent purely speculative fishing expeditions—there must be “objective indicium” of contemplated litigation. Applying that standard, the court affirmed the district court’s finding that Orthogen’s record met the threshold.

B. Intel factor two: receptivity is assessed pragmatically, not by demanding proof of admissibility

Addressing Schottenstein’s claim that the district court demanded “authoritative proof” of German admissibility, the panel reframed what the district court actually did: it credited evidence (including Orthogen’s foreign-law expert) that there was no identified German rule barring collection or use of § 1782 evidence. The court thus treated Intel factor two as a question of likely receptivity and absence of known prohibitions, not a mini-trial on foreign evidentiary admissibility.

C. Forum-selection clause: relevant, but not dispositive without explicit discovery waiver

The panel drew an important distinction between (i) selecting a forum for merits litigation and (ii) waiving access to evidence-gathering mechanisms available elsewhere. Consistent with Banoka S.à.r.l., it held that a forum-selection clause is merely a factor within the district court’s discretionary analysis. The court further underscored a drafting-based rationale: if parties intend to foreclose § 1782 discovery, they can say so expressly. Absent explicit language, the clause “often says very little” about the parties’ intent regarding U.S. discovery.

D. Equal protection challenge: comity-based objectives provide an easy rational basis

The panel applied rational-basis review (citing United States v. Amalfi) and found § 1782’s scheme rationally related to legitimate governmental interests, especially comity and reciprocal assistance as articulated in ZF Auto. US, Inc. v. Luxshare, Ltd.. It also invoked the strong presumption of constitutionality and the challenger’s heavy burden (citing Jankowski-Burczyk v. I.N.S.).

E. Counterclaims in § 1782: statute is discovery-only; foreign-law damages theory is out of scope

The panel’s treatment of the counterclaim proceeds on two tracks:

Structural/statutory fit: The court signaled that § 1782 does not naturally accommodate counterclaims because it authorizes orders “prescribing the practice and procedure” for taking testimony and producing documents for foreign proceedings, not adjudicating merits disputes between the parties.
Even if allowed, this one fails: Schottenstein’s damages theory depended on whether German law treats a forum-selection clause as creating a cause of action for damages when a party seeks evidence outside Germany. Predicting that substantive/procedural foreign-law issue was deemed beyond the proper scope of § 1782, consistent with Euromepa S.A. v. R. Esmerian, Inc..

F. No sua sponte leave to amend

The court relied on Horoshko v. Citibank, N.A. to hold that district courts are not required to offer amendment opportunities sua sponte—particularly where sophisticated, represented parties never requested leave.

3) Impact

Reinforces the “objective indicium” gate for pre-suit § 1782: Applicants can seek U.S. discovery before filing abroad, but must document concrete steps toward litigation. Respondents should focus opposition on the absence of objective indicia rather than arguing a categorical “no pre-suit discovery” rule.
Forum-selection clauses are not automatic shields against § 1782: Contract drafters who want to prevent cross-border U.S. discovery should consider explicit language addressing § 1782 (or broader “no foreign discovery assistance” provisions), recognizing enforceability questions may still arise.
Limits procedural expansion of § 1782 proceedings: The skepticism toward counterclaims discourages turning § 1782 into collateral litigation over contractual damages or forum disputes—keeping § 1782 closer to a targeted discovery mechanism rather than a merits-adjudication platform.
Constitutional challenges face steep odds: By grounding § 1782 in comity and reciprocal assistance (per ZF Auto), the court signals that rational-basis review will typically dispose of equal protection attacks absent unusual discrimination or suspect classifications.

Complex Concepts Simplified

28 U.S.C. § 1782: A federal statute allowing U.S. district courts to order discovery (documents, testimony) from persons found in the district for use in proceedings before foreign or international tribunals, upon application by an interested person or tribunal.
“For use” in a foreign proceeding: The discovery does not require an already-filed foreign case; it is enough that the evidence is intended to be used in a proceeding that is reasonably contemplated. In the Second Circuit, this requires “objective indicium,” not mere stated intent.
Intel factors: Four discretionary considerations from Intel Corp. v. Advanced Micro Devices, Inc. that guide whether a court should grant § 1782 discovery even when the statute’s threshold requirements are met—covering participation in the foreign case, foreign receptivity, circumvention of foreign proof-gathering limits, and burden.
Rational-basis review: The most deferential constitutional standard: a law is upheld if any conceivable legitimate purpose could support it and the law is rationally related to that purpose.
Sua sponte leave to amend: Whether a court must offer a party permission to revise a pleading on its own initiative. The Second Circuit generally says “no,” particularly where the party never asked and is represented by counsel.

Conclusion

In Re: Orthogen Int'l GmbH affirms a pragmatic and restrained approach to § 1782. Pre-suit discovery remains available where an applicant can show objective evidence that foreign litigation is reasonably contemplated. Foreign forum-selection clauses, without explicit discovery-waiver language, do not categorically bar § 1782 applications; they are merely part of the discretionary mix under Intel. The decision also signals that § 1782 proceedings are not a natural vehicle for merits-adjacent counterclaims—particularly where such claims require courts to predict foreign law—and that district courts need not sua sponte invite amendments never requested. In combination, these holdings encourage targeted, comity-driven discovery assistance while preventing § 1782 from becoming a platform for collateral contractual litigation.