Esther Kiobel, By and Through Her Attorney-In-Fact, Channa Samkalden v. Cravath, Swaine & Moore LLP

The Foreign Legal Assistance Statute, 28 U.S.C. § 1782, allows federal district courts, in their discretion, to order production of documents for use in foreign legal proceedings. This Court held in Intel v. Advanced Micro Devices, 542 U.S. 241 (2004), that where a “foreign tribunal would readily accept relevant information discovered in the United States” pursuant to Section 1782, a rule requiring that the documents would be discoverable if located in the foreign country “would be senseless.” Id. at 262. The Second Circuit Court of Appeals held, as a matter of law, that the district court abused its discretion in granting discovery under Section 1782 because the documents “would not be discoverable abroad,” despite the fact that the foreign court would be receptive to this discovery. The question presented is: Under Intel, may a district court in its discretion allow Section 1782 discovery where the foreign court is receptive to U.S. discovery, but the documents at issue “would not be discoverable abroad”?