Second Circuit Clarifies Finality and Intervenor Access in § 1782 Discovery:
In re Application of Loudmila Bourlakova, 24-3187-cv & 25-49-cv (2d Cir. 2025)

Introduction

The United States Court of Appeals for the Second Circuit, in a non-precedential summary order, addressed two critical questions arising out of a 28 U.S.C. § 1782 discovery application: (1) whether discovery materials obtained in the United States must automatically be shared with intervening parties; and (2) whether a district court’s order denying a motion to compel further production is “final” for appellate purposes. The case stems from a cross-border marital-asset dispute pursued in the Business & Property Courts of England and Wales (“the U.K. Proceeding”) between Loudmila and Veronika Bourlakova (petitioners-appellees) and Vera and Nikolai Kazakov (intervenors-appellants). The Bourlakovas subpoenaed Clearing House Payments Company L.L.C. (“CHIPS”) in New York to trace alleged fraudulent transfers by Oleg Bourlakov (Loudmila’s estranged husband) to the Kazakov family. The district court (Judge J. Paul Oetken) granted the § 1782 application, allowed the Kazakovs to intervene, but refused to quash the subpoena or compel full disclosure of CHIPS documents. The Second Circuit has now affirmed.

Summary of the Judgment

• Motion to Dismiss: The court denied the Bourlakovas’ motion to dismiss the appeal for lack of jurisdiction, holding that the district court’s order was final and thus reviewable under 28 U.S.C. § 1291.
• November 20 Order: The appellate panel affirmed the district court’s refusal to vacate its earlier order granting the § 1782 discovery and to quash the CHIPS subpoena.
• December 20 Order: The panel also affirmed the denial of the Kazakovs’ motion to compel the production of all CHIPS materials, finding no abuse of discretion.
• Main Holdings: (a) Minimal relevance suffices to satisfy the § 1782 “for use in a foreign proceeding” requirement; (b) Allegations of the applicant’s bad faith, without more, do not mandate denial; (c) District courts retain broad discretion over the scope of § 1782 subpoenas and the sharing of produced documents with intervenors; (d) An order denying a motion to compel, even “without prejudice,” can be final where it practically ends the U.S. proceeding.

Analysis

Precedents Cited and Their Influence

• Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) – Provided the four discretionary factors guiding courts when granting § 1782 discovery. The Second Circuit found that Judge Oetken properly balanced these factors.
• In re del Valle Ruiz, 939 F.3d 520 (2d Cir. 2019) – Reaffirmed de novo review of the statutory prerequisites of § 1782; cited for the appellate standard of review.
• IJK Palm LLC v. Anholt Services USA, Inc., 33 F.4th 669 (2d Cir. 2022) – Clarified abuse-of-discretion review once § 1782 requirements are satisfied. Applied here to uphold the discovery order.
• In re BonSens.org, 95 F.4th 75 (2d Cir. 2024) – Defined the “for use” test as “practical ability” to present material abroad; used to dismiss the Kazakovs’ relevance argument.
• Mees v. Buiter, 793 F.3d 291 (2d Cir. 2015) – Discussed good faith and disclosure in § 1782 requests; relied on to reject bad-faith allegations.
• Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76 (2d Cir. 2012) & In re Edelman, 295 F.3d 171 (2d Cir. 2002) – Confirmed broad district-court discretion over subpoenas.
• Grand Central Partnership, Inc. v. Cuomo, 166 F.3d 473 (2d Cir. 1999) – Standard for reviewing discovery orders, reinforcing the high bar for reversal.
• Leftridge v. Connecticut State Trooper Officer No. 1283, 640 F.3d 62 (2d Cir. 2011) – Offered the finality framework the panel used to exercise jurisdiction.
• In re Hornbeam Corp., 2015 WL 13647606 (S.D.N.Y.) – Example of a court ordering disclosure of subpoenaed materials to intervenors; cited only to show such orders are discretionary, not mandatory.

Legal Reasoning

1. Statutory Compliance. The application met § 1782’s three thresholds: (i) Person residing or found in the district (CHIPS); (ii) “For use” in a foreign proceeding (U.K. litigation); (iii) Request initiated by an interested person (the Bourlakovas). The withdrawal of a freezing-order request in the U.K. proceeding did not defeat relevance because bank-transfer data still bore directly on asset-dissipation claims.
2. Intel Discretionary Factors.
   • (1) Receptivity of foreign tribunal – No evidence the English court would reject U.S. evidence.
   • (2) Nature of the foreign proceeding & party status – Petitioners were litigants, not circumventing English procedure.
   • (3) Attempt to “circumvent” foreign proof-gathering restrictions – No such showing, and Florida litigation was not a bar.
   • (4) Undue burden or intrusiveness – Subpoena tailored to transfers involving the parties and related entities.
3. Bad-Faith Allegations. The court refused to equate document-authenticity disputes in the U.K. action with bad faith, citing Mees.
4. Scope and Sharing of Discovery. The Second Circuit emphasized that Rule 45(a)(4) only requires notice of a subpoena’s issuance, not blanket access to responsive materials. Advisory Committee Notes are persuasive but not binding. District courts may, but need not, order sharing; hence no abuse of discretion in limiting the Kazakovs to CHIPS records that mention them.
5. Finality and Appellate Jurisdiction. Although the December 20 order was phrased “without prejudice,” the panel considered the proceeding “ended as a practical matter.” Subsequent discovery in England would not reopen the U.S. case, satisfying the Leftridge standard for finality.

Impact of the Decision

While summary orders lack formal precedential force, they often influence district-court practice in the Second Circuit. This decision is likely to:

• Reinforce Lenient Relevance. Litigants can meet the “for use” criterion even when part of the requested relief in the foreign forum has been abandoned, so long as the information remains minimally relevant to ongoing claims.
• Clarify Intervenor Rights. Intervenors cannot assume automatic access to full subpoena productions. They must demonstrate why additional disclosure is necessary, and district courts retain gate-keeping authority.
• Provide Guidance on Jurisdiction. Appellate courts may treat a district court’s denial of a motion to compel—despite “without prejudice” language—as final where nothing substantive remains for the lower court to do.
• Encourage Tailored Meet-and-Confer Solutions. The panel implicitly endorsed the district court’s approach of ordering the parties to confer before court intervention, signaling to future litigants that cooperative discovery will be favored.

Complex Concepts Simplified

28 U.S.C. § 1782

A U.S. statute allowing a federal district court to order discovery “for use” in a proceeding before a foreign or international tribunal. It is often employed to trace assets, obtain bank records, or secure testimony for overseas litigation.

“For Use” Requirement

The applicant must have a practical ability to present the information to the foreign court. Absolute certainty of admissibility is not required; minimal relevance suffices in the Second Circuit.

Intel Factors

Four discretionary considerations articulated by the Supreme Court in Intel that guide, but do not constrain, district-court decisions on § 1782 requests.

World-Wide Freezing Order

An English-law remedy that restrains a defendant from dissipating assets globally. Its withdrawal did not negate the need for bank records in this case.

Finality (28 U.S.C. § 1291)

An order is “final” when it ends litigation in the district court. The label “without prejudice” is not dispositive; practical effect controls.

Conclusion

The Second Circuit’s decision in In re Application of Loudmila Bourlakova strengthens the already liberal approach to § 1782 discovery within the Circuit, while reminding intervenors that access to subpoenaed materials is not automatic. By affirming the district court’s discretion both to grant targeted bank-transfer discovery and to limit subsequent sharing, the panel reiterates that § 1782 proceedings are ancillary aid to foreign litigation, not full-blown U.S. discovery disputes. The ruling also clarifies that appellate review is available once the district court’s role is essentially complete, even if theoretical future motions could be conceived. Practitioners should take note: transparency with the court, careful tailoring of requests, and constructive cooperation remain the keys to successful—and sustainable—§ 1782 applications.