A federal appeals court recently issued a rare opinion reinforcing the expansive discovery available under 28 U.S.C. § 1782 (Section 1782), a powerful tool for obtaining U.S.-based evidence for foreign proceedings. In In Re SBK ART LLC, the U.S. Court of Appeals for the Second Circuit upheld a lower court's decision to authorize a subpoena that sought documents from a U.S. law firm regarding its representation of a foreign client.¹

The law firm, Akin Gump Strauss Hauer & Feld LLP (Akin), had advised Fortenova Grupa (Fortenova), a major European food and retail company, regarding the risk posed by one of its institutional shareholders, SBK ART LLC (SBK), which was connected to a sanctioned Russian bank.² Akin advised Fortenova that continuing to associate with SBK could expose it to sanctions violations, which led to a corporate restructuring that deprived SBK of its interest in Fortenova. SBK later initiated litigation in the Netherlands and Malta.³ Akin's advice to Fortenova was a key issue in the litigation.⁴

Rather than attempting to seek discovery from Fortenova or its shareholders in Europe, SBK petitioned a U.S. federal district court for discovery against Akin under Section 1782.⁵ The district court granted SBK's petition and authorized a limited subpoena that sought "non-privileged materials that [were] uniquely possessed by Akin or that [were] shared with third parties other than Fortenova."⁶ Akin appealed to the Second Circuit.⁷

Akin argued the district court abused its discretion by granting a Section 1782 petition for documents it only held in its role as counsel to a foreign client because the documents were undiscoverable from the client abroad.⁸ In other words, Akin argued that because the relevant documents were not obtainable from Fortenova through foreign discovery procedures, they should not be discoverable from Akin through Section 1782.

The Second Circuit disagreed. It said that whether the information sought under Section 1782 is discoverable abroad "is a useful tool," but cautioned that it is just one factor a court should consider and "should not be afforded undue weight" in a court's analysis.⁹ The Second Circuit noted that the Supreme Court has "expressly held" that "Section 1782 does not include a foreign-discoverability rule – that is, the statute does not require a 'threshold showing by the party seeking discovery that what is sought be discoverable in the foreign proceeding.'"¹⁰ The privilege concerns raised by Akin's arguments did not change this calculus. Federal courts "cannot impose categorical limitations on Section 1782's reach, even in the face of strong policy concerns surrounding protection of attorney-client relations."¹¹

The Second Circuit emphasized that Akin's argument ultimately was not about the risk of disclosing privileged materials, since SBK's subpoena only sought non-privileged materials. Akin's argument instead focused on the undue burden it would have to undergo to do a "document-by-document review" of the "[n]umerous documents" it created as Fortenova's legal advisor, negotiator, and evaluator. Akin argued that determining whether each "document is better categorized as lawyering or lobbying will force clients (and their law firms) to undergo a tedious and expensive exercise."¹²

The Second Circuit concluded that the district court properly addressed these concerns under ordinary discovery rules by limiting the scope of SBK's subpoena to topics that it found relevant, limiting the time period for document production, and limiting production to only non-privileged materials. The district court "opened the gate to permit SBK to seek discovery from Akin; once the discovery requests are formally issued, the ordinary rules of discovery will govern any disputes regarding specific materials. Those rules will adequately protect Akin."¹³ 

The Second Circuit's ruling in In re SBK is confirmation that foreign litigants can use Section 1782 to obtain discovery in the U.S. that is not available in their home jurisdiction. The opinion also confirms that the attorney-client relationship is not a per se bar to discovery in the U.S. Foreign litigants can obtain discovery of non-privileged materials, even from law firms, through an appropriately tailored subpoena.

If you would like to discuss litigation under Section 1782, how to tailor a subpoena that is likely to be upheld by a U.S. federal court, or any other litigation issues, please contact the Miller & Chevalier attorneys listed below.

Ian A. Herbert, iherbert@milchev.com, 202-626-1496

Cody Marden, cmarden@milchev.com, 202-626-1495

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¹In Re SBK ART LLC, No. 25-1563-CV, 2026 WL 478787, at *8 (2d Cir. Feb. 20, 2026)
²Id. at *2-3.
³Id.
⁴Id.
⁵Id. at *3-4.
⁶Id.
⁷Id.
⁸Id. at *8.
⁹Id. at *11.
¹⁰Id.
¹¹Id.
¹²Id. (cleaned up).
¹³Id. at *12.

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