Contracting Parties Beware: A Forum Selection Clause May Not Bar 1782 Discovery

The Second Circuit has reaffirmed that a forum selection clause designating a non-U.S. forum—which was silent regarding discovery in the United States—will not categorically preclude Section 1782 discovery.  While rejecting the forum selection clause-based argument in this case, the court observed that parties may contractually surrender rights they might otherwise possess and left open the possibility that a differently worded forum selection clause—one that specifically addressed Section 1782—might be invoked to avoid Section 1782 discovery. 

The court also ruled that a Section 1782 petition is not a vehicle to assert counterclaims in a U.S. court. 

Section 1782 in Brief

Section 1782 grants U.S. district courts the power to order U.S.-style discovery for use in foreign proceedings. 

To qualify, discovery targets must “reside” or be “found” in the district, the discovery must be for a foreign proceeding, and the request must originate from a foreign tribunal or an “interested person.” Once the statutory requirements are met, courts exercise broad discretion guided by Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), weighing the nature of the foreign proceeding, whether the request circumvents foreign proof-gathering restrictions, and whether it would be unduly burdensome.

The Discovery Dispute

German company Orthogen International GmbH sought to obtain pre-suit discovery in the Southern District of New York from Dr. Douglas Schottenstein and his clinic for an anticipated German litigation. Schottenstein opposed the petition on multiple grounds, including that the underlying contract designated Düsseldorf, Germany as the exclusive forum. Schottenstein argued that the forum selection clause precluded discovery in the United States. 

The Forum Selection Clause Does Not Close the Door

The Second Circuit disagreed. Citing Banoka S.a.r.l. v. Elliott Management Corp., 148 F.4th 54 (2d Cir. 2025), the court observed that a forum selection clause “remains a factor that the district court may consider in its exercise of discretion[,]” but it does not categorically preclude Section 1782 discovery.  The court reasoned that “a forum selection clause often says very little about whether the parties intended to restrict access to discovery in the United States pursuant to section 1782.”  If Orthogen and Schottenstein “really intended to close that door” to Section 1782 discovery, they “easily could have included such a provision in the text of their agreement. They did not.” Accordingly, Schottenstein’s opposition to the discovery was contradicted both by Intel and the Second Circuit’s earlier precedent. 

This principle is not new. In Intel, the Supreme Court clarified that Section 1782 discovery is a procedural right. 542 U.S. at 247. Parties can therefore contractually surrender that right, so long as the agreement is clear.  As both the Second and Seventh Circuits have observed, “a district court is not prohibited from considering, where applicable, a party’s clear, ex ante contractual preference for a different forum with its own, unique discovery practices . . .”  Banoka S.a.r.l., 148 F.4th at 66; In re Application of Venequip, S.A. v. Caterpillar, Inc., 83 F.4th 1048, 1057 (7th Cir. 2023) (“We explained that a forum-selection clause ‘might indicate the parties’ preference for a court system that doesn’t contemplate the level of compulsory process available in America.”). 

No Room for Counterclaims in § 1782 Proceedings

The Second Circuit also rejected Schottenstein’s breach of contract counterclaim, which alleged Orthogen’s petition violated the forum selection clause. The court reasoned that Section 1782 “merely creates a mechanism” for accessing U.S.-based witnesses and documents available for foreign proceedings. It does not “graft the entirety of the Federal Rules of Civil Procedure into a single statute” nor “open the door for claims or counterclaims that are typically better left to the foreign tribunal.” 

What It Means

The decision refines practical guidance from the Second Circuit’s Banoka ruling. Three key takeaways emerge:

• Draft with precision. A forum selection clause designating a non-U.S. forum alone will not shield parties from Section 1782 discovery. Parties that wish to exclude U.S. discovery should consider including an express contractual provision that addresses whether, and to what extent, U.S. discovery is to be permitted. Generic jurisdictional language is unlikely to suffice.
• The statute authorizes evidence gathering, nothing more. Targets of discovery cannot raise counterclaims to defend against petitions to leverage broad U.S. federal court discovery tools.
• Pre-suit discovery remains available. The court reaffirmed § 1782 does not require pending or imminent foreign proceedings, provided objective indications of genuinely contemplated litigation exist.

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