Reaffirming Broad §1782 Discovery: The “For Use” Requirement and Intel Factors in In re Kipperband

Introduction

In In re Kipperband, 24-2627 (2d Cir. May 16, 2025), the Second Circuit addressed a dispute over discovery under 28 U.S.C. § 1782. Applicants Dussan David Kipperband, Ivan Kipperband, and Mara Kipperband, parties to ongoing foreign proceedings, sought court orders compelling fourteen U.S. financial institutions to produce wire-transfer records. Marlen Kipperband, an intervenor in the district court and a participant in the same foreign litigation, objected. She argued that (1) the records were not genuinely “for use” in a foreign tribunal, and (2) the district court misapplied three of the four Supreme Court–approved “Intel factors” that guide discretionary § 1782 discovery. The Second Circuit affirmed the district court’s grant of discovery from the banks and denied the intervenor’s appeal, clarifying the standards for § 1782 petitions and the proper application of the Intel factors.

Summary of the Judgment

The Court of Appeals unanimously held that:

The applicants satisfied all three statutory prerequisites of § 1782: respondents reside or are found in the Southern District of New York; the requested materials are “for use” in the foreign proceedings; and the applicants are “interested persons” or parties in those foreign tribunals.
The district court did not abuse its discretion in applying the four Intel factors, as interpreted by this Circuit’s precedents. In particular:
- The first Intel factor (whether the discovery target is a party in the foreign litigation) did not preclude relief because Marlen and her brother Benjamin lacked the ability to produce the bank records themselves.
- The third Intel factor (possible circumvention of foreign proof-gathering restrictions) was inapplicable: there was no showing that the foreign forum prohibited the evidence or imposed procedural hurdles that petitioners were sidestepping.
- The fourth Intel factor (intrusiveness and burden of the requests) did not warrant denial: the burden falls on non-party banks, which have not objected, and petitioners remain subject to federal protective-order practice.

Accordingly, the district court’s § 1782 discovery order was affirmed, and Marlen’s appeal—and related motions—were denied.

Analysis

Precedents Cited

Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004): Established four non-exclusive discretionary factors governing § 1782 petitions.
Kiobel by Samkalden v. Cravath, Swaine & Moore LLP, 895 F.3d 238 (2d Cir. 2018): Emphasized that Intel factors are not mechanical and reaffirmed that a party’s participation in foreign litigation does not necessarily defeat § 1782 relief if it cannot produce the materials itself.
Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76 (2d Cir. 2012): Clarified that an applicant need only show minimal relevance of requested materials and need not prove admissibility in the foreign forum.
Mees v. Buiter, 793 F.3d 291 (2d Cir. 2015): Directed courts to apply Federal Rule of Civil Procedure 26 standards to assess undue burden under Intel’s fourth factor and held that § 1782 should not be denied simply because the evidence would be unavailable in the foreign proceeding.
In re BonSens.org, 95 F.4th 75 (2d Cir. 2024): Reaffirmed that relevance in § 1782 is minimal relevance to the subject matter of the foreign proceeding.

Legal Reasoning

The Court’s analysis proceeded in two steps. First, it confirmed that the statutory prerequisites of § 1782 were met:

Residency or presence in the district: The fourteen banks have branches or conduct business in New York.
For use in a foreign tribunal: It suffices that the records are minimally relevant to issues pending abroad.
Interested person: Applicants are parties in the foreign proceedings.

Second, the Court upheld the district court’s discretionary grant. It found no abuse of discretion in evaluating:

Intel Factor 1 (foreign-proceeding participation): Marlen’s argument failed because she and her brother do not control bank document production.
Intel Factor 3 (circumvention of foreign restrictions): No evidence suggested that foreign rules forbade seeking the same evidence in the U.S.
Intel Factor 4 (burden/intrusiveness): The subpoenas target third-party banks; none objected, and existing protective mechanisms under Rule 26 remain available.

Impact

In reaffirming a broad, flexible approach to § 1782 discovery, In re Kipperband will guide litigants and district courts in the Second Circuit—and likely beyond—to:

Emphasize that “for use” requires only minimal relevance, not probable admissibility, in foreign proceedings.
Decline to conflate participation in foreign litigation with ability to produce requested materials.
Resist arguments that § 1782 petitions improperly circumvent foreign discovery rules absent concrete evidence of such restrictions.
Apply Rule 26 standards when evaluating burdensomeness under Intel’s fourth factor and encourage protective orders rather than wholesale denial.

This decision therefore preserves § 1782 as a powerful tool for cross-border evidence gathering, subject to district-court oversight and collaborative protective-order practice.

Complex Concepts Simplified

28 U.S.C. § 1782: A statute that allows parties in foreign or international proceedings to obtain evidence from persons or entities located in the United States, provided three prerequisites are met.
“For use in a foreign proceeding”: Does not require proof that evidence would be admitted abroad—only that it bears minimal relevance to the dispute.
Intel factors: Four guideposts (foreign-party participation; receptivity of foreign tribunal; circumvention of foreign rules; burden/intrusiveness) that courts weigh—but need not apply rigidly—to decide whether to grant or deny § 1782 discovery.
Discretionary relief: Even if § 1782’s prerequisites are satisfied, a district court may deny or tailor discovery based on these factors.

Conclusion

In re Kipperband is a significant Second Circuit summary order reaffirming that § 1782 provides broad discovery powers for parties in foreign proceedings. By clarifying the “for use” standard and the proper application of Intel’s discretionary factors, the Court has given practitioners clear guidance: minimal relevance suffices, foreign-forum participation does not automatically bar discovery if control over the evidence is absent, and burdensome or intrusive requests are better addressed through protective orders rather than wholesale denial. This ruling strengthens the bridge between U.S. courts and foreign tribunals for efficient evidence gathering while preserving judicial discretion to prevent abuse.