A recent decision of the U.S. District Court for the District of Delaware addressed a federal statute that allows, under certain circumstances, discovery in a U.S. federal court to aid a lawsuit pending in another country, in the matter styled: In re Application of Vestolit GmbH and Celanese Europe B.V., Misc. No. 24-cv-1401-CFC (D.Del. Nov. 24, 2025).

Background

  • The court described the ex parte application for a subpoena that was originally granted–but emphasized that it did not prevent any other parties from moving to quash the subpoena or challenging any deficiencies in it.
  • The court also described the procedural history of the related litigation in a Dutch Court in Amsterdam, as well as comparing the prior rulings by the Dutch Court on discovery with the discovery that was sought in the U.S. Court.

Highlights

  • The court explained the authority to grant an application for discovery in aid of foreign litigation based on § 1782 of Title 28 of the United States Code if three statutory conditions are met: (1) The person from whom discovery is sought “resides or is found” within the district; (2) The discovery is “for use in a proceeding before a foreign or international tribunal”; and (3) The application is made by an “interested person.” 28 U.S.C. § 1782(a). Slip op. at 5-6.
  • The court described the four factors described in the U.S. Supreme Court’s Intel decision that are relevant to the exercise of the discretionary determination in these matters. Id. at 6.
  • The court discussed other cases that expounded on the various nuances of the requirements to be satisfied and the need to interface with any determinations the foreign courts may have made about discovery.
  • The court declined to award a request for fees from Shell Chemical under Rule 45 ([d])(1), 28 U.S.C. § 1927, or under the court’s inherent power and broad discretion because the subpoenas in this case were “not fairly characterized as blatantly defective.” Id. at 19.
  • In sum, the court concluded that the applicant appeared to be using § 1782 to circumvent Dutch discovery rules. Therefore, it granted the motion to vacate the order regarding the application to obtain discovery for use in a foreign proceeding, and quashed the subpoena.