Second Circuit Holds That U.S. Law Firm Need Not Produce Foreign Client’s Documents Pursuant to 28 U.S.C. § 1782

On July 10, 2018, the Second Circuit in Kiobel v. Cravath, Swaine & Moore LLP, held that a district court abused its discretion under 28 U.S.C. § 1782 by ordering a U.S.-based law firm to produce, to a litigant in foreign proceedings, documents that were held by the firm on behalf of a foreign client.

The decision reinforces existing Second Circuit precedent counseling a cautious approach to requests to compel U.S. counsel to produce documents under Section 1782 that are undiscoverable abroad, as so doing tends to jeopardize the policy favoring open communications between foreign clients and their U.S. attorneys. The decision is also noteworthy in that it turns on the existence of a protective order covering the documents at issue, and thus underscores the continued importance of obtaining confidentiality agreements in the context of both civil litigation and enforcement proceedings both in the U.S. and abroad. Finally, the decision informs a growing body of law dealing with subpoenas directed at counsel seeking documents unavailable from their clients, which has relevance outside of the Section 1782 context, including where U.S. counsel collect and review foreign documents for production in civil litigation or government investigations.