Section 1782 Discovery: Second Circuit Reverses a Section 1782 Order Directing a Law Firm to Produce a Foreign Client’s Documents

Sullivan & Cromwell LLP - July 17, 2018

On July 10, 2018, in Kiobel v. Cravath, Swaine & Moore LLP, No. 17-424-cv (2d Cir.), the United States Court of Appeals for the Second Circuit reversed a district court order granting a petition under 28 U.S.C. § 1782 directing Cravath, Swaine & Moore LLP to produce documents for use in the plaintiff’s planned proceeding in The Netherlands against one of that firm’s clients, Royal Dutch Shell. Although the reversal limits the circumstances in which Section 1782 may be used to obtain discovery in the United States in aid of a foreign proceeding, the Second Circuit’s decision highlights the potential that delivery of materials to counsel in the United States in connection with a request for legal advice could subject the underlying documents to disclosure in litigation either in the United States or abroad.