IN RE: EX PARTE APPLICATION OF SBK ART LLC; SBK ART LLC v. AKIN GUMP STRAUSS HAUER & FELD LLP
No. 25-1563-cv
United States Court of Appeals For the Second Circuit
February 20, 2026
August Term 2025; Argued: December 4, 2025
Respondent-appellant Akin Gump Strauss Hauer & Feld LLP (“Akin“) appeals from an order of the United States District Court for the Southern District of New York (Engelmayer, J.) granting the petition of petitioner-appellee SBK ART LLC (“SBK“) for discovery in aid of foreign litigation under
Akin principally argues on appeal that the District Court abused its discretion because the documents sought by SBK are not discoverable from Akin‘s client in any of the foreign jurisdictions in which litigation is pending or contemplated. Relying on our decision in Kiobel by Samkalden v. Cravath, Swaine & Moore LLP, 895 F.3d 238 (2d Cir. 2018), Akin contends that a district court should not exercise its discretion under Section 1782 to allow discovery of documents held by a U.S. law firm when those documents are not discoverable from the firm‘s foreign client abroad. We disagree with Akin and conclude that the District Court did not abuse its discretion. Accordingly, we AFFIRM.
JAMES E. TYSSE (Anne M. Evans, Sean M. Nolan, Daniel W. Slemmer, Akin Gump Strauss Hauer & Feld LLP, New York, NY, Lide E. Paterno, Kristen E. Loveland, Akin Gump Strauss Hauer & Feld LLP, Washington, DC, on the brief), Akin Gump Strauss Hauer & Feld LLP, Washington, DC, for Respondent-Appellant.
SARAH A. L. MERRIAM, Circuit Judge:
Respondent-appellant Akin Gump Strauss Hauer & Feld LLP (“Akin“) appeals from a May 30, 2025, order of the United States District Court for the Southern District of New York (Engelmayer, J.) granting the petition of petitioner-appellee SBK ART LLC (“SBK“) for discovery in aid of foreign litigation under
The Magistrate Judge (Tarnofsky, M.J.) issued a report and recommendation (“R&R“) in which she recommended that the District Judge grant SBK‘s petition for discovery, but that the order be limited to a small subset of thе discovery sought. See In re SBK ART LLC (“SBK I“), No. 1:24MC00147 (PAE)(RFT), 2024 WL 4264893 (S.D.N.Y. July 30, 2024). The District Judge, over Akin‘s objections, adopted the R&R in its entirety and granted the petition, authorizing SBK to seek discovery from Akin within the R&R‘s narrowly defined parameters. See In re SBK ART LLC (“SBK II“), No. 1:24MC00147(PAE)(RFT), 2025 WL 1537474 (S.D.N.Y. May 30, 2025).
Akin principally argues on appeal that the District Court abused its discretion by granting the Section 1782 petition because the documents sought by SBK are not discoverable from Akin‘s client in any of the foreign jurisdictions in which litigation is pending or contemplated. Relying on our decision in Kiobel by Samkalden v. Cravath, Swaine & Moore LLP, 895 F.3d 238 (2d Cir. 2018), Akin contends that a district court should not exercise its discretion under Section 1782 to allow discovery of documents held by a U.S. law firm when those documents are not discoverable from the firm‘s client abroad. Akin, however, reads Kiobel
We conclude that the District Court did not abuse its discretion in granting the petition under Section 1782. Akin is entitled to object to any discovery sought on the grounds that production imposes undue burdens or unduly interferes in its attorney-client relationship. But such objections are properly addressed not at the Section 1782 stage - which merely opens the gate to discovery - but, after a Section 1782 petition is granted, through the ordinary rules governing discovery under the Federal Rules of Civil Procedure.
We therefore AFFIRM the District Court‘s order granting SBK‘s petition.
BACKGROUND
I. Factual Background1
A. Parties
Akin2 is a multinational law firm that served as lead international and
B. Underlying Events
The litigation that gives rise to SBK‘s petition stems from a series of events culminating in Fortenova‘s corporate restructuring, which deprived SBK of its ownership interest in Fortenova. Fortenova restructured to reduce the risk of violating sanctions rules applicable to Russian entities because of its affiliation with SBK, which was controlled by Sberbank.
On October 31, 2022, Sberbank sold SBK to H.E. Saif Jaffar Suhail Markhan
Akin advised Fortenova in connection with these issues. On December 14, 2022, Akin provided STAK3 with a memorandum entitled “Report on [Know Your Customer] Documents in Connection with the Transaction between Sberbank and Mr. Alketbi.” Joint App‘x at 149. The parties refer to this as the “Akin Opinion.”
In preparing the Akin Opinion, Akin reviewed certain documents that SBK and Mr. Alketbi provided to Fortenova management related to the sale of SBK. Akin concluded that the information in thоse documents was “insufficient to
Two days later, on December 16, 2022, the EU Council imposed sanctions against SBK on the basis that it is “a company in the Russian Federation associated with Sberbank . . . [and] Sberbank retains effective control over SBK ART LLC notwithstanding the purported transfer of its shares to a businessman in the United Arab Emirates.” Joint App‘x at 359-60 (citation modified). SBK contends that these sanctions resulted from lobbying efforts by Fortenova and Open Pass Limited (“Open Pass“), which is Fortenova‘s largest non-sanctioned equity holder. According to SBK, Fortenova management leaked the Akin
Because SBK was sanctioned, it was not permitted to attend or vote at Fortenova DR holder meetings. In January 2023, at a meeting of DR holders, changes to Fortenova‘s corporate governancе structure (the “Corporate Changes“), proposed by Open Pass, were approved. SBK was not permitted to vote on these changes, which made Open Pass “the de facto deciding DR Holder.” Joint App‘x at 361. In December 2023, Fortenova‘s non-sanctioned DR holders voted to approve the sale of one of its holding companies, Fortenova Group MidCo B.CV. (“MidCo“), “to a new holding structure capitalized by its non-sanctioned equity holders, and underwritten by the largest non-sanctioned equity holder, Open Pass.” Joint App‘x at 387-88. As a result of this transaction, SBK lost its interest in Fortenova for, according to SBK, “an incredibly undervalued price.” Appellee‘s Br. at 7.
SBK initiated multiple proceedings in connection with these events; two are relevant to this appeal. First, on February 26, 2023, SBK filed an Action for Annulment (the “EU Action“) against the EU Council in the General Court of the European Union, challenging the EU Council‘s imposition of sanctions against SBK. Second, on August 4, 2023, SBK sued Open Pass, STAK, and certain directors or shareholders of both entities, in the Malta Civil Court (the “Malta Action“), seeking damages arising from “the changes to the corporate governance in Fortenova Group in favor of Open Pass and its Croatian owners.” Joint App‘x at 355.
SBK asserts that it also intends to file suit in the Netherlands or another foreign court (the “Anticipated Litigation“) “as a result of the MidCo Sale, . . . to seek to recover damages proximately caused by Open Pass and the individuals that are the ultimate beneficial owners of Open Pass, along with Fortenova Group‘s management and their accomplices.” Joint App‘x at 371.
II. Procedural History
On March 26, 2024, SBK filed a petition in the Southern District of New York pursuant to
On July 30, 2024, the Magistrate Judge issued an R&R recommending that SBK‘s petition be granted, subject to significant restrictions in three main areas. See SBK I, 2024 WL 4264893, at *1, *20. First, the R&R concluded that discovery on just three topics would likely be relevant to either or both the Malta Action and the EU Action:5 “(1) Mr. Alketbi‘s acquisition of [SBK]; (2) the Akin Opinion; and (3) the Corporate Changes.” Id. at *20. Second, “the relevant period for document production should be from February 1, 2022 (shortly before Mr.
On May 30, 2025, the District Judge adopted the R&R in full and rejected, among others, Akin‘s objection that the Magistrate Judge had misapplied this Court‘s decision in Kiobel. See SBK II, 2025 WL 1537474, at *1, *9-11. The District Judge accordingly granted SBK‘s petition subject to the parameters in the R&R.
Akin timely appealed.
DISCUSSION
We conclude that the District Court did not abuse its discretion by granting the Section 1782 petition for discovery from Akin - a U.S. law firm - without first making a finding as to whether those documents were discoverable abroad from Akin‘s client.
“We review de novo a district court‘s ruling that a petition satisfies §1782‘s jurisdictional [i.e. statutory] requirements, and review fоr abuse of discretion a district court‘s application of the discretionary [] factors” set forth in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004). Mangouras v. Squire Patton Boggs, 980 F.3d 88, 98 (2d Cir. 2020) (first alteration in original) (citation modified). “Where a district court exercises its discretion premised on the misapplication of a legal principle, the court by definition abuses its discretion and makes an error of law.” Ratliff v. Davis Polk & Wardwell, 354 F.3d 165, 168 (2d Cir. 2003).
I. Law Applicable to Section 1782 Petitions
Section 1782(a) of Title 28 “affords access to discovery of evidence in the United States for use in foreign proceedings.” In re Edelman, 295 F.3d 171, 175 (2d Cir. 2002). The statute, entitled “Assistance to foreign and international tribunals and to litigants before such tribunals,” provides:
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, including criminal investigations conducted before formal accusation. The оrder may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court.
The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the
international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.
A. History and Purposes of Section 1782
“Section 1782 is the product of congressional efforts, over the span of nearly 150 years, to provide federal-court assistance in gathering evidence for use in foreign tribunals.” Intel, 542 U.S. at 247. “Federal law has provided for some form of judicial assistance to foreign courts since 1855,” In re Gianoli Aldunate, 3 F.3d 54, 57 (2d Cir. 1993), when Congress enacted a statute empowering courts to compel witness testimony in response to letters rogatory from any court of a foreign country, see Act of March 2, 1855, ch. 140, §2, 10 Stat. 630 (providing that “a United States commissioner designated by [a] circuit court . . . shall be empowered to compel the witnesses to appear and depose in the same manner as to appear and testify in court“).6 Since then, Congress has substantially
The current version of the statute reflects this history. It vests a district court with the power to compel a person who resides in or is found in that district to give “testimony or [a] statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal.”
The statute allows a request to be made by “a foreign or international tribunal or upon the application of any interested person.”
B. Section 1782‘s Two-Step Inquiry
“A district court analyzes a §1782 petition in two steps.” Banoka S.à.r.l. v. Elliot Mgmt. Corp., 148 F.4th 54, 64 (2d Cir. 2025). First, a court must satisfy itself that the statutory, or jurisdictional, requirements are met:
Fed. Republic of Nigeria v. VR Advisory Servs., Ltd., 27 F.4th 136, 148 (2d Cir. 2022)(1) the person from whom discovery is sought resides (or is found) in the district of the district court to which the application is made, (2) the discovery is for use in a foreign proceeding before a foreign or international tribunal, and (3) the application is made by a foreign or international tribunal or any interested person.
Second, “[o]nce those statutory requirements are met, a district court may grant discovery under §1782 in its discretion.” Mees v. Buiter, 793 F.3d 291, 297 (2d Cir. 2015). “This discretion, however, is not boundless, but must be exercised in light of the twin aims of the statute: providing effiсient means of assistance to participants in international litigation in our federal courts and encouraging foreign countries by example to provide similar means of assistance to our courts.” Id. at 297-98 (citation modified); see also In re Metallgesellschaft, 121 F.3d 77, 79 (2d Cir. 1997). “To evaluate whether granting an application would further those aims, courts are to consider four factors that the Supreme Court laid out in Intel.” Fed. Republic of Nigeria, 27 F.4th at 148. Those factors are:
Kiobel, 895 F.3d at 244 (quoting Intel, 542 U.S. at 264-65).(1) whether “the person from whom discovery is sought is a participant in the foreign proceeding,” in which event “the need for §1782(a) aid generally is not as apparent as it ordinarily is when evidence is sought from a nonparticipant in the matter arising abroad“; (2) “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“; (3) “whether the §1782(a) request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States“; and (4) whether the request is “unduly intrusive or burdensome.”
We have long “read [S]ection 1782‘s investment of broad discretion in the district courts as an invitation for district judges to fashion creative means of implementing thе statute‘s double goal.” Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d 1095, 1102 (2d Cir. 1995). For example, “the district court can utilize its powers under the Federal Rules of Civil Procedure to lessen significantly the burden of handling [the] discovery.” In re Malev Hungarian Airlines, 964 F.2d 97, 102 (2d Cir. 1992). “[I]t is far preferable for a district court to reconcile whatever misgivings it may have about the impact of its participation in the foreign litigation by issuing a closely tailored discovery order rather than by simply denying relief outright.” Euromepa, 51 F.3d at 1101; see also Malev, 964 F.2d at 100 (District courts “may impose conditions to minimize the compliance burdens, so
C. Discovery under Section 1782
The broad availability of discovery under Section 1782 means “the role of the district courts as gatekeepers is paramount.” In re Accent Delight Int‘l Ltd., 869 F.3d 121, 134 (2d Cir. 2017). If the district court concludes that the statutory requirements are met and its exercise of discretion is appropriate, the Section 1782 inquiry is complete. The ordinary rules of discovery then apply:
Heraeus Kulzer, GmbH v. Biomet, Inc., 633 F.3d 591, 597 (7th Cir. 2011) (Posner, J.).The section 1782 screen - the judicial inquiry that the statute requires - is designed for preventing abuses of the right to conduct discovery in a federal district court for use in a foreign court. Once the court has determined that such abuses are unlikely, the ordinary tools of discovery management, including Rule 26, come into play; and with objections based on the fact that discovery is being sought for use in a foreign court cleared away, section 1782 drops out.
In other words, once a district court has opened the statutory gate to discovery, any disputes around its proper scope are governed by the ordinary rules of discovery, including the Federal Rules of Civil Procedure. See id.; accord Gov‘t of Ghana v. ProEnergy Servs., LLC, 677 F.3d 340, 343 (8th Cir. 2012) (“[Section 1782] provides for a threshold determination of whether to allow foreign litigants to enjoy discovery in U.S. courts in accordance with federal rules. The manner in
Indeed, Section 1782 expressly provides that the Federal Rules govern the procedures for discovery. See
In Edelman, we addressed “whether an individual, who lives and works abroad, may be subject to being subpoenaed for deposition pursuant to §1782(a) while traveling in the United States.” Id. at 173. We concluded that “[a]s a matter of law, a person who lives and works in a foreign country is not necessarily
With this understanding of a district court‘s authority and discretion under
Akin does not dispute that the District Court had jurisdiction under
As we explain below, the District Court did not commit legal error in interpreting and applying Kiobel. Kiobel did not change the well-settled rule that
The District Court properly rejected Akin‘s arguments that Kiobel requires denial of the petition. See SBK II, 2025 WL 1537474, at *9-12. In Kiobel, we addressed a petition seeking documents from the law firm Cravath, Swaine & Moore LLP (“Cravath“) for use in a lawsuit against its client, Royal Dutch Shell (“Shell“), in the Netherlands. See 895 F.3d at 240. The petitioner, Esther Kiobel, sought a subpoena for all deposition transcripts, documents, and communications that Shell had produced to her in prior litigation. See id. at 241. That discovery, however, was subject to a stipulated confidentiality order. See id. “Kiobel did not subpoena Shell, only Cravath,” id. at 242, which was “holding the documents because it represented Shell in prior litigation,” id. at 240. We held that the district court abused its discretion in granting the petition, “in light of the Intel factors, the respect owed to сonfidentiality orders, and the concerns for lawyer-client relations.” Id. at 248.
Focusing on our third rationale - policy concerns regarding lawyer-client relations - Akin insists that “[t]his case is controlled by Kiobel‘s observation that ‘a district court should not exercise its discretion to grant a Section 1782 petition for documents held by a U.S. law firm in its role as counsel for a foreign client if
First, neither Kiobel nor the cases it relied on establish a categorical limitation under
1. Our previously expressed policy concerns do not support a categorical limitation on Section 1782 discovery.
Kiobel relied on two prior cases in articulating the policy concerns around attorney-client relations: In re Sarrio, S.A., 119 F.3d 143 (2d Cir. 1997), and Ratliff v. Davis Polk & Wardwell, 354 F.3d 165 (2d Cir. 2003).
In Sarrio, this Court considered “whether the attorney-client privilege shields documents undiscoverable abroad but transferred to an attorney in the
Ratliff considered this dicta from Sarrio. The Ratliff plaintiffs sought documents from the law firm Davis Polk & Wardwell (“Davis Polk“); those documents belonged to Davis Polk‘s client but came under the firm‘s control during its representation of the client. See Ratliff, 354 F.3d at 167. “Davis Polk . . . argued that under Sarrio documentary evidence is not available from a lawyer custodian, even absent attorney-client privilege, if the court does not have
[E]ven if Davis Polk . . . is claiming the protection discussed in Sarrio, that protection, even if it had been the holding of Sarrio, would not avail Davis Polk in this case. Even if we assume that, when the documents were sent by [the client] to Davis Polk to secure the firm‘s legal advice, they were entitled to protection, such protection wаs lost when [the client] voluntarily authorized Davis Polk to send the documents to the SEC. . . . [A]ny such protection does not continue when the client voluntarily discloses the documents to a third party, here a government agency.
Id. at 170. We assumed, but did not decide, that the documents would have been entitled to some protection because they were held by a law firm.
Kiobel discussed Sarrio and Ratliff. Akin quotes from that discussion in a manner that suggests Kiobel altered the longstanding principles governing
Therefore, although our Court in Ratliff held that Davis Polk was subject to [the plaintiff‘s] subpoena, Ratliff did not disturb Sarrio‘s suggestion that a district court should not exercise its discretion to grant a
Section 1782 petition for documents held by a U.S. law firm inits role as counsel for a foreign client if the documents are undiscoverable from the client abroad, because this would disturb attorney-client communications and relations. Sarrio, 119 F.3d at 146; Ratliff, 354 F.3d at 170.
Kiobel, 895 F.3d at 246. Rather, in Kiobel, we simply offered a commentary on the interplay of Sarrio and Ratliff. Those cases, and the policy concerns they raised, were relevant to our discussion, but not the sole basis for our decision.
2. The Intel factors and the confidentiality order were essential to the Kiobel decision.
We also found pertinent two other grounds - the Intel factors and the confidentiality order - which Akin downplays. Kiobel itself emphasized the fact-intensive nature of the
Two of the Intel factors weighed against the Kiobel petition, distinguishing
Here, as found by the Magistrate Judge and adopted by the District Judge, only one of the Intel factors weighs against granting SBK‘s petition. See SBK I, 2024 WL 4264893, at *14. Further, Akin does not challenge the District Court‘s balancing of the Intel factors. See Reply at 4 (asserting that the “pertinent issue is not how the district court balanced the four specified Intel factors” (emphasis added)
Even more significantly, we found the confidentiality order in Kiobel dispositive. See Kiobel, 895 F.3d at 246-47. Specifically, even though a stipulated confidentiality order restricted Kiobel from using Shell‘s confidential documents without Shell‘s agreement or a court order, the district court in Kiobel “required [Kiobel and Cravath] to sign a new stipulation” with fewer protections. Id. at 241-42. “Under the new stipulation, Shell ha[d] no right to enforce a breach of confidentiality.” Id. at 242. On appeal, we concluded that “[t]he decision to alter the confidentiality order without Shell‘s participation, and without considering the costs of disclosure to Shell, makes this case exceptional, and mandates reversal.” Id. at 247 (emphasis added). We emphasized that “[p]rotective orders serve the vital function of securing the just, speedy, and inexpensive determination of civil disputes by encouraging full disclosure of all evidence that might conceivably be relevant. This objective represents the cornerstone of our administration of civil justice.” Id. (citation modified).
The district court‘s discovery order in Kiobel effectively allowed
Granting SBK‘s petition did not require modifying any existing confidentiality order, and Akin here does not argue (nor did the District Court find) that SBK‘s petition was “made in bad faith, for the purpose of harassment, or unreasonably [sought] cumulative or irrelevant materials.” Euromepa, 51 F.3d at 1101 n.6. Thus, Kiobel is distinguishable and does not control.
3. Section 1782 does not impose a foreign-discoverability requirement.
Akin contends that “the critical question here is whether the relevant documents are obtainable from Fortenova through foreign discovery
The Supreme Court expressly held in Intel that
Given that the statutory language is silent and the legislative history indicates that in exercising its discretionary power, the court may take into account the nature and attitudes of the government of the country from which the request emanates and the character of the proceedings in that country, we find it difficult to believe that Congress actually intended sectiоn 1782 to have an implicit requirement that any evidence sought in the United States be discoverable under the laws of the foreign country.
Gianoli Aldunate, 3 F.3d at 59 (citation modified). Although “district judges may well find that in appropriate cases a determination of discoverability under the laws of the foreign jurisdiction is a useful tool in their exercise of discretion,” id.
Thus, we cannot impose categorical limitations on
4. Akin‘s concerns are properly addressed under ordinary discovery rules.
Akin‘s argument ultimately is not about the risk of disclosing privileged materials; indeed, neither SBK‘s proposed subpoena nor the District Court‘s order requires disclosure of such documents. See SBK I, 2024 WL 4264893, at *20 (narrowing subpoena to “non-privileged materials that are uniquely possessed by Akin or that have been shared with third parties other than Fortenova“); accord
The District Court properly fashioned its order to meet the twin aims of
As noted,
Akin may move to quash any requests issued or may seek a protective order if necessary to protect it or any person “from annoyance, embarrassment, oppression, or undue burden or expense.”
We leave it to the District Court to resolve any future disputes over specific discovery requests. We conclude today that the District Court did not abuse its discretion in opening the gate to discovеry under
* * *
In sum, a district court is not precluded from issuing an order under
B. The District Court did not abuse its discretion under Banoka.
Akin argues in the alternative that, even if we do not agree that Kiobel requires reversal, we should vacate and remand with instructions to consider certain extraterritoriality factors, including “the foreign location of the documents and their primary custodians.” Appellant‘s Br. at 51. Akin relies on a recent decision in which we affirmed the denial of a
In Banoka, we reviewed a district court‘s finding that the petitioner‘s
Applying these principles, we found no abuse of discretion in the district court‘s consideration of “the foreign location of the documents and the foreign status of their primary custodian under the fourth Intel factor.” Banoka, 148 F.4th at 70 (citation modified). Those facts - coupled with the overbreadth of the request and the fact that the respondent U.S. company was “operationally distinct” from the foreign entities that held the documents - led the district court to weigh the fourth Intel factor against the petitioner. Id. at 69-70. We affirmed. But while Banoka found it was not an abuse of discretion to consider the foreign location of documents, it did not impose a rule requiring consideration of that factor. That the Banoka district court did not abuse its discretion in denying that petition does not mean the District Court here abused its discrеtion in granting this petition. Banoka merely underscores the well-settled principle that a district court has broad discretion under
As the District Court stated: “[The R&R] significantly limited the requested discovery, and found that the burden presented [by] the approved discovery justified by the needs of SBK‘s foreign litigation, which, aims to recoup approximately 500 million euros in losses alleged suffered by SBK as a result of the Corporate Changes.” SBK II, 2025 WL 1537474, at *12 n.8. Further, the District Court was fully aware of the extraterritorial nature of the discovery. See, e.g., SBK I, 2024 WL 4264893, at *19-20 (addressing Akin‘s burden argument that proposed subpoenas would “discourage clients from hiring the foreign office of
Because the District Court here weighed all relevant considerations, vacatur and remand on this alternative basis is not warranted.
CONCLUSION
For the foregoing reasons, the District Court‘s order is AFFIRMED.