Section 1782 Discovery in Miami: The Intel Factors
By Matthew W. Reiser | Last reviewed October 28, 2026
A party to a lawsuit or investigation abroad can sometimes get evidence from a person or company in the United States by applying to a federal court under 28 U.S.C. § 1782. Because so many people and businesses involved in Latin American and European disputes live, bank or keep offices in South Florida, these applications are a regular part of federal practice in Miami. Whether a court grants one comes down to two questions: does the application meet the statute's requirements, and should the court use its discretion to allow the discovery under the factors the Supreme Court set out in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004).
What the statute says
Section 1782(a) provides that the district court "of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal." 28 U.S.C. § 1782(a). The request can come from the foreign tribunal itself or "upon the application of any interested person." Id. Unless the court's order says otherwise, the discovery proceeds under the Federal Rules of Civil Procedure, and no one can be compelled to testify or produce documents "in violation of any legally applicable privilege." Id.
The four statutory requirements in the Eleventh Circuit
Federal courts in Florida follow In re Clerici, 481 F.3d 1324 (11th Cir. 2007). Under Clerici, a district court has authority to grant an application when (1) the request is made by a foreign or international tribunal or by any interested person, (2) it seeks testimony, a statement, or documents or other things, (3) the evidence is for use in a proceeding in a foreign or international tribunal, and (4) the person from whom discovery is sought resides or is found in the district. Id. at 1331-32.
Intel answered several questions about those requirements. A complainant who started a proceeding abroad, and not only a formal party, can be an "interested person." The foreign proceeding does not have to be pending or imminent; it only has to be "in reasonable contemplation." And the statute contains no requirement that the evidence would be discoverable under the law of the foreign forum. Intel, 542 U.S. at 246-47. That last point matters in Miami in particular: before Intel, the Eleventh Circuit had read a foreign-discoverability requirement into § 1782, and Intel rejected it. Id. at 253 & n.7.
The word "tribunal" has its own limits. In ZF Automotive US, Inc. v. Luxshare, Ltd., 596 U.S. 619 (2022), the Supreme Court held that § 1782 requires a "foreign or international tribunal" to be governmental or intergovernmental, so private commercial arbitration panels do not qualify. Id. at 633, 638. An applicant whose dispute is in private arbitration overseas generally cannot use § 1782.
The Intel factors
Meeting the statute gets an applicant in the door. It does not entitle the applicant to discovery. As the Supreme Court put it, "a district court is not required to grant a § 1782(a) discovery application simply because it has the authority to do so." Intel, 542 U.S. at 264. The Court then described four considerations that courts now call the Intel factors. Id. at 264-65.
The first is whether the person from whom discovery is sought is a participant in the foreign proceeding. When the target is a party abroad, "the need for § 1782(a) aid generally is not as apparent as it ordinarily is when evidence is sought from a nonparticipant," because the foreign tribunal can order its own parties to produce evidence. Id. at 264. Banks, accountants, corporate service providers and other third parties in Miami are the classic nonparticipant targets.
The second is "the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U. S. federal-court judicial assistance." Id. Evidence that the foreign court would welcome the material helps an applicant. Evidence that it would not helps the respondent.
The third is whether the request "conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States." Id. at 265.
The fourth is burden. "[U]nduly intrusive or burdensome requests may be rejected or trimmed." Id. Courts often narrow an application rather than deny it outright, so a tightly drawn request tends to fare better than a sweeping one.
Documents held outside the United States
A Miami respondent cannot always avoid production by pointing out that the documents sit in another country. In Sergeeva v. Tripleton International Ltd., 834 F.3d 1194 (11th Cir. 2016), the Eleventh Circuit held that because § 1782 incorporates the Federal Rules of Civil Procedure, a district court could require a respondent in the district to produce responsive documents located outside the United States, so long as the respondent had possession, custody, or control of them. Id. at 1200.
Practical points for both sides
Applications are often presented to the court without notice to the respondent, who then responds with a motion to vacate the order or quash the subpoena, as the respondent did in Sergeeva. An applicant should file a complete record at the start: what the foreign proceeding is, why the evidence is for use in it, why the target is not a party there, and why the requests are no broader than they need to be. A respondent should look first at the statutory requirements, including whether the foreign body is a governmental tribunal after ZF Automotive, and then build a record on each Intel factor, including burden and any privilege.
Talking with Reiser Law
Reiser Law, P.C. represents applicants and respondents in § 1782 matters in the Southern District of Florida. Learn more about our Section 1782 discovery practice in Miami or read about it en español. You can also contact our Miami office or send us a message.
This article is general information, not legal advice, and reading it does not create an attorney-client relationship. The law changes, and its application depends on the facts of each case. Attorney advertising.