Speculative Appeals and Contingent UAE Criminal Complaints Do Not Satisfy § 1782’s “For Use” Requirement; District Courts May Vacate Ex Parte § 1782 Orders and Quash Subpoenas in Full

1. Introduction

In In Re: Application of Yulia Guryeva-Motlokhov (2d Cir. Mar. 30, 2026) (summary order), the Second Circuit affirmed the Southern District of New York’s decision to (i) quash subpoenas issued under 28 U.S.C. § 1782 and (ii) vacate a previously granted ex parte § 1782 order. The applicant, Yulia Guryeva-Motlokhov, sought U.S. discovery from two U.S. entities concerning 2019 wire transfers allegedly referencing Gaston Browne, the Prime Minister of Antigua and Barbuda, and related individuals and entities (the “Intervenors-Appellees”).

The core dispute was statutory: whether the requested discovery was “for use” in a qualifying foreign proceeding—either (a) an ongoing civil case in Antigua and Barbuda (but with a completed bench trial and no further evidentiary opportunity at the trial level), or (b) contemplated criminal proceedings in the United Arab Emirates. A secondary procedural dispute was whether the district court could quash the subpoenas in their entirety, including as to targets who did not file timely motions under Rule 45.

2. Summary of the Opinion

The Second Circuit affirmed on the ground that Guryeva-Motlokhov failed to satisfy § 1782’s statutory “for use” requirement. The court held that:

  • Antigua and Barbuda: the asserted intended use was speculative because it depended on future, uncertain appellate contingencies (who wins, who appeals) and the applicant did not identify a concrete procedural mechanism to introduce the discovery into the foreign proceeding.
  • UAE: the contemplated criminal proceedings were also speculative because initiation depended on (i) what discovery might reveal and (ii) discretionary determinations by UAE prosecutorial authorities regarding admissibility and whether to investigate.

The court further held that the district court did not violate Rule 45 by quashing all subpoenas without timely motions from every target, because district courts retain inherent authority to reconsider interlocutory orders—particularly where the court’s statutory authority to grant § 1782 relief is implicated.

Notably, the denial was without prejudice to renewal if circumstances materially change.

3. Analysis

3.1. Precedents Cited

Brandi-Dohrn v. IKB Deutsche Industriebank AG, 673 F.3d 76 (2d Cir. 2012)

The court relied on Brandi-Dohrn for the basic two-step framework: a district court must first confirm § 1782’s statutory prerequisites and only then exercise discretion (including weighing the Intel factors). Here, because the district court resolved the matter on statutory grounds, the discretionary step never began.

In re BonSens.org, 95 F.4th 75 (2d Cir. 2024)

BonSens.org supplied two key propositions that drove the outcome: (i) the applicant must satisfy all statutory prerequisites, and (ii) intended “for use” cannot be “merely speculative.” The panel deployed that standard to reject both proffered foreign uses.

In Re SBK ART LLC, 168 F.4th 68 (2d Cir. 2026)

The court cited In Re SBK ART LLC for § 1782’s “twin aims” (efficient assistance to international litigants and reciprocal encouragement abroad) and for the link between those aims and the Intel factors. Critically, it served as context only: because the applicant failed the statute’s threshold “for use” requirement, the court never reached discretionary balancing.

Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004)

Intel provided the discretionary-factor framework and also reinforced that § 1782 relief depends on statutory “authority.” In this case, Intel matters mainly in two ways: (i) to clarify that discretionary factors come after statutory compliance, and (ii) to support the district court’s authority to revisit an earlier ex parte order once statutory defects were raised.

Certain Funds, Accts. and/or Inv. Vehicles v. KPMG, L.L.P., 798 F.3d 113 (2d Cir. 2015)

The panel used Certain Funds to set the standard of review—de novo—because the district court decided purely on statutory grounds. It also drew from Certain Funds the requirement of “reliable indications” that proceedings will be instituted “within a reasonable time” when the foreign proceeding is not yet pending.

Mangouras v. Squire Patton Boggs, 980 F.3d 88 (2d Cir. 2020)

Mangouras supplied the “within reasonable contemplation” standard: a proceeding need not be pending or imminent, but must be more than a hypothetical possibility. The court applied that principle to reject a scenario in which the foreign action’s commencement depended on multiple contingencies.

IJK Palm LLC v. Anholt Servs. USA, Inc., 33 F.4th 669 (2d Cir. 2022)

IJK Palm was central to the Antigua analysis. The panel treated the applicant’s plan to use evidence only in a possible appeal as the kind of “intervening event[s] or decision[s]” that makes “for use” speculative. It also relied on IJK Palm for the “procedural mechanism” concept: an applicant must identify how the discovery can actually be injected into the foreign proceeding, not merely assert it may become useful later.

In re Accent Delight Int'l Ltd., 869 F.3d 121 (2d Cir. 2017)

The panel invoked In re Accent Delight Int'l Ltd. for the notion of an applicant’s “practical ability” to start proceedings. Where the initiation of proceedings depends on outcomes not within the applicant’s control (and not reliably likely), the “for use” showing weakens.

Mees v. Buiter, 793 F.3d 291 (2d Cir. 2015)

The court cited Mees to emphasize that an applicant does not need an explicit statement from a foreign tribunal requesting the evidence. Nonetheless, Mees does not eliminate the statutory requirement that the evidence be genuinely “for use” in a contemplated or ongoing proceeding; it simply prevents courts from imposing an additional “foreign tribunal demand” requirement.

Grace v. Rosenstock, 228 F.3d 40 (2d Cir. 2000)

Grace supported the court’s rejection of the Rule 45 argument by confirming a district court’s inherent authority to reconsider interlocutory orders. The panel treated that inherent authority as especially salient where a court’s earlier order (granted ex parte) later appears to exceed the statutory bounds of § 1782.

3.2. Legal Reasoning

Threshold statutory gatekeeping: “for use” must be non-speculative

The court’s reasoning follows a strict sequencing: § 1782 relief is unavailable unless the applicant clears the statute’s threshold requirements. The decisive requirement here was “for use in a proceeding in a foreign or international tribunal.”

Antigua and Barbuda: potential appellate use is not enough when contingent and procedurally undefined

The panel accepted that there was an Antiguan civil matter, but focused on use: the applicant conceded she could not use the discovery in the trial court because the bench trial had completed and she had no further opportunity to submit evidence. Her only identified use was conditional appellate use, depending on who wins and whether an appeal occurs.

That posture made the requested discovery “entirely speculative” under BonSens.org and IJK Palm, because it hinged on intervening future decisions by parties and courts. Compounding the problem, the applicant did not identify a concrete procedural mechanism in Antigua by which the evidence would be admitted or considered on appeal (beyond suggestions at oral argument that did not establish any granted relief abroad).

UAE: a contemplated criminal complaint was too contingent on discovery results and prosecutorial discretion

For the UAE, the applicant’s own foreign-law showing described proceedings as merely “considering initiating” and dependent on whether the petition is deemed admissible and whether the prosecutor elects to investigate. The panel treated that as falling short of the “reliable indications” requirement (from Certain Funds) and the “within reasonable contemplation” requirement (from Mangouras), because initiation was not shown to be likely within a reasonable time, but rather conditional on uncertain events.

Quashing in full: inherent authority to correct an ex parte interlocutory order that exceeds statutory power

On the Rule 45 argument, the court held that even if not every subpoena target filed a timely motion, Rule 45 does not strip the district court of power to revisit its own interlocutory discovery orders. Because § 1782 subpoenas depend on statutory authority, once the court determined the statutory prerequisites were not met, it could quash the subpoenas in full rather than leave parts of an ultra vires discovery regime in place.

3.3. Impact

  • Tightening “for use” where the asserted use is appellate-only and contingent: The decision reinforces that an applicant should not expect § 1782 discovery merely because evidence might become useful on appeal. If the applicant cannot use the evidence in the current phase of the foreign case, the applicant should be prepared to show (i) a realistic, non-contingent path to appellate proceedings and (ii) a concrete procedural pathway to admit or deploy the evidence.
  • Higher evidentiary discipline for contemplated criminal matters: Applications premised on “contemplated” criminal proceedings must show more than an intention to complain. Where initiation depends on prosecutorial admissibility screening and discretionary decisions, applicants should expect to provide objective, reliable indications that proceedings are likely to be instituted within a reasonable time.
  • Ex parte § 1782 orders remain vulnerable to later statutory challenges: The ruling underscores that initial ex parte grants are not durable if intervenors later demonstrate a statutory defect; courts can vacate and quash to realign the case with statutory limits.
  • Practical litigation effect: Respondents and intervenors can frame opposition around statutory prerequisites to obtain de novo appellate review (rather than abuse-of-discretion review that typically governs discretionary-factor rulings).

4. Complex Concepts Simplified

  • 28 U.S.C. § 1782: A U.S. statute allowing federal courts to order discovery in the United States to help with litigation (or certain adjudicative processes) abroad.
  • “For use” requirement: The discovery must be intended for actual use in a foreign proceeding—not merely interesting, investigatory, or potentially helpful if a chain of events occurs.
  • “Within reasonable contemplation”: A foreign proceeding can qualify even if not filed yet, but there must be a real, concrete likelihood it will be brought, not a conditional possibility.
  • “Procedural mechanism” to “inject” evidence: The applicant should be able to explain how the foreign forum can receive and consider the evidence (e.g., an evidentiary motion, reopening proofs, a defined appellate record mechanism).
  • Ex parte order: An order issued without hearing from the other side first. Ex parte § 1782 orders are common at the outset but can be revisited once subpoena targets or interested parties appear.
  • Interlocutory order: A non-final order issued during a case. Courts generally may reconsider such orders.
  • Quash (a subpoena): To nullify the subpoena so the recipient does not have to comply.

5. Conclusion

The Second Circuit’s decision reinforces § 1782’s statutory gatekeeping: discovery is not available when the applicant’s proposed “use” depends on uncertain future appeals or on speculative, discretionary foreign prosecutorial actions. The ruling also confirms that district courts may vacate ex parte § 1782 orders and quash subpoenas in full when statutory prerequisites are not met, notwithstanding Rule 45 timing arguments. While nonprecedential as a summary order, the decision aligns tightly with—and applies in a fact-sensitive way—the Circuit’s recent “for use” jurisprudence demanding non-speculative, procedurally grounded intended use in foreign proceedings.