SBK ART LLC v. Akin Gump Strauss Hauer & Feld LLP - Discovery for Foreign Litigation

25 -1 563 - cv In Re: E x Parte Appl icat ion of SBK ART LLC United State s Court of Appea ls For the Second Cir cuit A ugust T erm 20 25 Argued: December 4, 2025 Decided: February 2 0, 2026 No. 25-1563- cv I N R E: E X P ART E A PPLICA TION OF SBK ART LLC ********************* ************ ************ ** SBK ART LLC, P etitioner-Appellee, v. A KIN G UMP S TRAUSS H AUER & F EL D LLP, Respondent-Appell a nt. Appeal f rom the United States Distri ct Court for the Southern Dist rict o f New Y ork No. 1:24MC00147, E ngelmay er, Judge.

2 Before: R OBINSON, M ERRIA M, Circuit Judges, and S TEIN, District Judge. * Respondent - appellant Akin Gum p Strauss Hauer & Feld LLP (“ Akin”) appeals from an order of the United States Dis trict Court for the Southern District of New Y ork (Engelmay er, J.) gran ting the pet ition of petitioner - appellee SBK A RT LLC (“SBK ”) for discovery in aid of foreign litigation under 28 U.S.C. §1782. SBK sough t documents and de position tes timony from Akin for use in certain pending civil proceedings and in anticip ated lit igat ion in Europe. The Distric t Court granted SBK’s p etition but limited the di scovery av ai lable to a small subset of the d iscovery that SBK had sought in it s pet it ion. Akin principally argues on appeal that th e District Court abused its discr etion becaus e the documen ts sought by SBK are no t discoverable from Akin’s clie nt in an y o f the fore ign jurisd ict ions in w hich lit igat io n is pending or contemp lated. Relying o n our dec ision in Kiobel by Samkald en v. Cravath, Sw ain e & Moore LLP, 895 F.3 d 238 (2d C ir. 2018), Aki n con tends that a district court should not exercise its discreti on under Section 1782 to allow di scovery of documents held b y a U.S. law fir m when those documents are not discoverable from the firm’s fore ign client abr oad. W e disag ree with Akin and concl ude that the Distr ict Cou rt di d not abu se its discr etion. Accordingly, we AFFI RM. J AMES E. T YSSE (Anne M. Ev ans, S ean M. Nolan, Daniel W. Slemmer, Akin Gump Strauss Hauer & Feld LLP, New Y ork, NY, Lide E. Paterno, Kristen E. Lovel an d, Akin Gump Strauss Hauer & Feld LLP, W ashing ton, DC, on the brief), A kin Gump Strauss Haue r & Feld LLP, W as hington, DC, for Respondent-Appellant. * Judge S idney H. Stein, of th e United Sta tes Dis trict Court fo r the So uthern Di strict of New Y ork, sitt ing by des ignation.

3 R OBERT S. L ANDY (Bry an W. McCracken, on the brief), Ford O’Brien L andy LLP, New Y ork, NY, for P etitioner-Appell ee. S ARAH A. L. M ERRIA M, Circuit Judge: Respondent - appellant Akin Gum p Strauss Hauer & Feld LLP (“ Akin”) appeals from a May 30, 2025, or der of the Un ited States Dis trict Court for the Southern Di strict of New Y ork (Engelmayer, J.) grant ing the p etit ion of petit ione r -appe llee SBK ART LLC (“SBK”) for discovery in aid of foreign litiga tion under 28 U.S.C. §1782. Section 1 782 permits a d istrict court, “u pon the application of any in tere st ed person,” to orde r a person within its jurisdiction “to giv e his testimony or stat ement or to produce a document or other thing for use in a proceeding in a foreign or in ternation al tribunal.” 28 U.S.C. §1782(a). S BK sought docu ments and depos ition testim ony from Akin for us e in pending ci vil proceedings in the Ge neral Court of the European Uni on and t he Civil Court of Malta and in ant ic ipa ted l itiga tion in the Nether lands or other foreign cour ts. Specifically, SBK sought to “ discover and expose facts and ev idence that demonstrate the ex istence of an un lawful scheme to ca use dam ages to SBK ART and ultimately depr ive it of its ownership rights and bene fits in a ma jor food and retail company base d in Zagr eb, Croatia, called Fortenova Grupa d.d.” Joint

4 App’x at 353. The Magistrate Judg e (T arnofsky, M.J.) issued a repor t and recommendation (“R &R”) in which she recommended th at the Dis trict Judge grant SBK’s petition for discov ery, b ut t hat th e order be l imited to a s mall subset of the discovery sought. See I n re SBK ART LLC (“ SBK I ”), No. 1:24MC00147 (P AE)(RFT), 2 024 WL 4264893 (S.D.N.Y. J uly 30, 2024). The District Judge, over Akin’s objections, ad opted the R&R in its e ntirety and gra nted th e peti tion, authoriz ing S BK to seek discov ery fro m Akin within t he R&R ’s narrowly defined paramet ers. See In re SBK ART LLC (“ SBK II ”), No. 1:24MC001 47(P AE)(RFT), 2025 WL 1537474 (S.D.N.Y. May 30, 2025). Akin pr in cipa lly argues on appea l that th e Distr ict Co urt abus ed its discr etion by gran tin g the S ection 1782 p e tition because the do cuments so ught b y SBK are not disco verable from Ak in’s client in an y of the fore ign jurisdictions in which li tig atio n is pending or contemp lated. Re lyin g on our d ec ision in Kio bel by Samkalden v. Cravath, Sw aine & Moore LLP, 895 F.3d 238 (2d C ir. 2018), A kin contends that a district court should not exe rcise its discretion under S ection 1782 to allow discovery of documen ts held by a U.S. law firm when those docu ments are not discoverable from the firm’s clien t abroad. Akin, ho wev er, re ads Kiobel

5 too broadly; Kiobel d oes not i mpose a “ foreign d iscov erabi lity” requirement under Section 1782, a nd because Kiobe l is dist ingu ish able, it do es not control. W e conclude that the District Court did not abuse its discretion in granting the peti tion under Section 1 782. Akin is e ntitle d to ob ject to a ny dis covery sought on the gr ounds that prod uction i mpos e s undue burde ns or undu ly interfere s i n its attor ney - clie nt rela tion sh ip. But such objec tions are properly addressed not at the Section 17 82 stage – which merely o pens the gate to discov ery – but, after a Section 1782 petiti on is granted, throug h the ordinary rules gov ern ing discov ery under the Federal Rules of Civil P rocedure. W e therefore AFFIRM the District Court’s order granting SBK’s p etit ion. BACKGROUND I. Factual Background 1 A. P arties Akin 2 is a multinat ional law firm th at served as lead internat ional and 1 The facts ar e drawn fr o m: (1) asser tions by SBK i n its Section 1782 petition; (2) evid ence subm itted by both pa rties to the Distric t Court; (3) the Dis trict Court opinions; and (4) other docu ments of rec ord. See In re Accent Delight In t’ l L td., 869 F.3d 121, 124 n.1 (2d Cir. 2017). The fact s are undisp uted u nless o the rwise st ate d. 2 SBK filed its petition to take discov ery from both Akin Gump St rau ss Hauer & Feld LLP, the Amer ican multinational law firm, and Akin Gump LLP, the entity that employs Akin’s United K ingdom solicitor s. Onl y the former is a party to this app eal;

6 English law counsel to Fortenova Grupa d.d. (“Forten ova”), a major food and retail company base d in Croat ia. Akin represented Fortenov a “in connec tion with a v ariety of c orporate, sanct ions, and other ma tters, sinc e April 2019.” Joint App’x at 382. SB K is a special purpose vehicle that was initially owned by the Russian bank Sberbank for t he purpose of holding Sberbank ’s interest in Fortenov a. B ecause of its ownership by t he Russian bank, SBK bec ame su bject to v arious international sanctions in 2022 fo llowing R ussia’s invasion of Ukraine. SBK he ld a 41.8 2% intere st in Fortenova, including through depository receipts (“DRs”) issued by Fo rtenova’s ultima te pa rent company, Fortenova Group ST AK Sticht ing (“S T A K”). B. Underlying Events The liti gation th at g ives rise to S BK’ s pet it ion ste ms fro m a series of ev ents culmin atin g in Forte nov a’s corporate restructu ring, wh ich depriv e d SB K of its ownership interes t in Fortenova. Forteno va rest ructured to reduce t he risk of violating sanctions r ules a pp licab le to Ru ssia n ent ities becaus e of its affi liation with SB K, which w as controlled by Sberba nk. On October 31, 2022, Sberbank sold SBK to H.E. Saif Jaffar Suh ail Markhan we use “ Akin” to ref er to both. Akin ac knowl edged at o ral argumen t that all of its attorneys have the same employ er.

7 Alketb i (“ Mr. Alket bi”), an E mir ati in vestor. S BK ass erts tha t Mr. Alketb i “ wa s and continues to be free from any sanctions,” which in turn means that “S BK ART also ceased to be subject to any sanct ions related to Sbe rbank” f ollo wing the sale. Joint App’x at 3 58. In spite of the s ale of SBK, “For tenov a concluded that it must continue to treat SBK as a sanctioned entity by virtue of it being owned and/or controlled by Sberb ank.” Joint App’x at 386. Among other things, Fortenov a asserted t hat it was unable to verify tha t the transaction between Sberbank and Mr. A lketbi resu lted in a change of con trol of SBK. Forten ova therefore began its efforts to remove SBK from its cap ital structure. Akin advis ed Forten ov a in connection w ith these issues. On December 14, 2022, Akin provided S TA K 3 with a memorandum en titled “Rep ort on [Know Yo u r Custo mer ] Documents in Connectio n with the Transaction between Sberbank and Mr. A lke tbi.” Join t App’x at 149. The parties refer to th is as the “ Akin O pin ion.” In preparing the Ak in Opinion, Akin reviewed certain documents that SBK and Mr. A lket bi provided to Fortenova management related to the sale of SBK. Akin concluded tha t the infor mation in thos e documents wa s “ insufficient to 3 It appears that Akin represented multiple Fort enova entities, including ST AK and the indi rect holdin g compan y Fortenov a Gr oup TopCo B. V.

8 confirm that the tran sactions under review are in compliance with applicab le law, specifically w ith EU sanctions r egulations, ” and “insuffic ient to confirm that the transa ctions under review hav e resulted in SBK no lon ger being subject to the asset freeze res trictions imposed on its purported (former) parent company Sberbank.” Joint App’x at 149. Akin a lso opined that the informat ion w as “indicative of criminal sanctions b reaches having been com mitted by EU persons in relation to the transactions under re v iew.” Jo int App’x at 149. Akin ultimately advise d it s c lient that “ [S TA K ] cannot recognize the exerci se of voting ri ghts by SBK as this would potentially b e in breach of EU sanctions reg ulations and co uld potentially expose [S T AK] for money la undering offen ces.” Joint App’x a t 150. T wo days la ter, on D ecember 16, 2022, the EU Counc il imposed sanctions against SBK on the b asis that it is “a comp any in the Russ ian Federation associated with Sbe rbank. . . [an d] Sberbank re tains effective control over SBK ART LLC notwithst anding the purported tr ansfer of its shares to a business man in the United Arab E mirates.” Joint Ap p’x at 359- 60 (citation modified). SBK contends that these s anctions resu lted from lobb ying efforts b y Fortenov a an d Open P ass Limited (“ Open P ass”), wh ich is Fortenova’s l argest non -sanctioned equit y ho lder. Ac cording to SBK, Fortenov a managem ent leaked the Akin

9 Opinion to the EU Council, and “the Akin Opin ion w as one of the key documents that w as assessed b y the Council when deciding o n the introduction of sanctions.” Jo int App’x at 2146. 4 Because SBK was sanctioned, it was not permitted to a ttend or vote at Fortenov a DR holder meetings. In Januar y 2023, at a meetin g of DR hol ders, changes to Forten ov a’s corpor ate governance structur e (the “C orporate Changes”), propose d by Open Pass, w ere appro ve d. SBK was not permitted to vote on these changes, which made O pen P ass “the de facto de ciding DR Holder.” Joint App’ x at 361. In Decembe r 2023, Forteno v a’s n on-sanctioned DR holders voted to app rove the sale of one of its ho lding compan ies, Fortenova Group MidCo B.CV. (“MidCo”), “ to a new holding s tructure capitalized by its non- sanctioned eq uity holders, and under written by the large st n on -sanctioned equity holder, Open P ass.” Joint App’x at 387-88. As a result of this transact ion, SBK lost its inter est in Fortenova for, according to SBK, “ an in c red ibly underv alued price. ” Ap pellee ’s Br. at 7. 4 This opinion c ites to portion s of the parties’ Seal ed Joint Append ix only to the e xtent that th e information has been publicly revealed by the parties in u nseal ed submi ssions, or by ruli ngs in the Distric t Court.

10 C. Foreign Litigation SBK in itia ted mult ipl e pr ocee dings in connection with these events; two are relev ant to this appeal. First, o n Febr uary 26, 2023, SB K filed an Action for Annulment (the “EU Action”) agains t the EU Counc il in the Gene ral Court of the European Union, cha llenging the EU C ouncil’s impos ition of s anctions aga inst SBK. Se cond, o n A ugust 4, 2 023, SBK sued Ope n P ass, ST A K, and certain directors or sharehol ders of both ent ities, in th e Malta Civ il C ourt (the “ Malta Action”), seeking da mages arising from “ the changes to the corporate gov ernan ce in Forten ov a Group in favor of Ope n P ass and its C roatian owner s.” Joint App’x at 355. SBK asse rts tha t it also intends to file su it in the Nethe rlands or another foreign court (the “ A ntic ipate d Lit iga tion ”) “as a result of t he MidCo Sa le, . . . to seek to recov er damages proximately caused by Op en P ass and the individu als that are the ulti mate beneficia l owners of Open Pass, along with Fortenova Group’s manage ment and the ir accomplice s.” Joint App’x at 3 71. II. Procedural History On March 26, 2024, S BK filed a p etition in the Southern Di strict of New Yo r k pursuant to 28 U.S.C. §1782 seek ing leav e from the District Court to issue

11 document and dep osition subpoe nas to A kin for use in the EU Acti on, the Malta Action, and the Anticip ated L itiga tion. SB K asser ted th at the di scov ery sought would allow it to “discover and expose fa cts and evidence that de monstrate the existence of an unla wful scheme to cause damage s to SBK ART and ult imately deprive it of its ownership rights and bene fits in [Fortenova].” Joint App’x at 353. Ak in opposed t he pe titio n, and th e parties appeared for oral argument before the Mag istrate Judge to whom the petition had been referred. On July 30, 2024, the Magistrate Ju dge issued an R& R recomm ending that SBK’s pet itio n be granted, subject to signi ficant restrictions in three main areas. See SBK I, 2024 WL 4 264893, at *1, * 20. Fir st, the R&R conc luded that discov ery on just three topics would likel y be relev ant to either or both the Mal ta Action and the EU Action: 5 “(1) Mr. Alketb i’s acquisition of [SB K]; (2) the Akin Opinion; and (3) the Corpora te Chan ges.” Id. at *2 0. Second, “the relev ant period for document productio n should be fro m February 1, 2022 (shortly before Mr. 5 SBK also sought disco very for use in the A nticipated Litigat ion, but the Magi strate Judge concluded that it was not clear th at the Anticip ated Litiga tion met S ection 1 782’s secon d statutory el ement. See SBK I, 2024 WL 4264893, at *7. B ecause SBK “ is seeking the sa me disc overy for use in the Anticipated Litigation as it seeks i n the Malta Action and th e EU Action, and s ince th e pendency of the Malta Action an d the EU Action satisfies the requirement of a foreign proceeding, ” the Magi strate J udge foun d it unne cessary to “ad dress whether the Antici pated Litigati on woul d also sa tisfy the requirement.” Id. (citatio n modified).

12 Alketb i ’ s a cqu isit ion of [SBK]) to Decembe r 31, 2023 (shortly a fter the s ale of MidCo), which seems to be the period during which there are most lik ely to be responsive documents on those t opics.” I d. Third, “produc tion [is] limited to non- privileged materials that are uniqu e ly possessed by Akin or that hav e been shared with third parties other than Forte nov a.” Id. On May 30, 2025, the District Judge adopted the R&R in full an d rejected, among others, Akin’s objection tha t the Magistrate Judge h ad misap pl ied th is Court’s decision in Kiobel. See SBK II, 2025 WL 1537474, a t *1, *9-11. The Distr ict Judge according ly granted SBK’s petition s ubject to the pa rame ters in the R &R. Akin timely appealed. DISCUSSION W e conclude that th e Dist rict Cou rt did n ot abuse its discretion by granting the Sect ion 1782 petit ion for d iscovery from Akin – a U.S. law firm – w ithout first making a finding as t o whethe r those documents were di scoverable abroad from Akin ’s clie nt. “W e review de no vo a distr ict court’s ru ling that a pet ition satis fies §1782’s jurisdictional [i.e. s tatutory] re quirements, an d review for abus e of discret ion a district court’s app lication of the d iscretionary [] factors ” se t forth in Intel Corp. v.

13 Adv anced Micro Devices, Inc., 54 2 U.S. 241 (2004). Mangoura s v. Squire Patton Boggs, 980 F.3d 88, 98 (2d C ir. 2020) (firs t alte ration in origina l) (citation mod ified). “Where a di strict court exercises it s discretion premised on the misapplica tion of a legal principle, the court by de finition a buses its discre tion and makes a n error of law.” Ratliff v. Da vis Polk & W ard well, 354 F.3d 165, 168 (2d Cir. 2003). I. Law Applicable to Section 178 2 Petitions Section 1782(a) of Ti tle 28 “affords access to discovery of eviden ce in the United States for use in foreign pr oceedings.” In re Edelma n, 295 F.3d 1 71, 175 (2d Cir. 2002). The statut e, entitled “ Ass istance to fore ign and inter national tr ibunals and to litigants be fore such tribun als,” provides: The distri ct court of the district in which a person resid es or is found may order him to give his testimony or statemen t or to produce a document or other thing for use in a p roceeding in a foreign or inter nat iona l tr ibuna l, including criminal investigations cond ucted before forma l accusation. The order may be made pursuant to a letter rogatory issued, or r equest made, by a foreign or inter national tribunal or upon the application of any interested person and may direct tha t the te stimo ny or sta temen t be given, or the document or other thing be pr oduced, before a person appointe d by the cou rt. 28 U.S.C. §1782(a). The statute also s e ts forth t he practices and procedu res applicable to that discovery: The order m ay prescribe the pra ctice and procedure, w hich may be in whole or p art the practice a nd procedure of the fore ign country or the

14 internati onal tribunal, for taki ng the testimony or statement or produci ng the document or ot her thing. To the extent that the order does not pre scribe otherwise, the testimony or sta tement shall be taken, and the docu ment or other thing produce d, in accordan ce with the Federal Rules of Civil Procedure. Id. Finally, the s tatute maintains protectio ns for privileges: “ A person may no t be compelled to give his testimony or s tatem ent or to produce a d ocument or othe r thing in violation of any legally app licable privilege.” Id. A. History and Purpose s of Section 1782 “Section 1782 is the p roduct of c ongressional effor ts, over the span of nearly 150 years, to provide federal- court assista nce in gathering evidenc e for use in for eign trib un als.” Intel, 542 U.S. at 247. “Fede ral law has pr ovided for so me form of judicial assis tance to forei gn courts since 1855, ” In re Gianoli Aldunate, 3 F.3d 54, 57 (2d C ir. 1993), when Congress enacted a sta tute e mpowering courts to compel witness test imony in re sponse to letter s rogatory from any court of a foreign country, se e Act of March 2, 1855, ch. 140, §2, 10 Sta t. 630 (provid ing that “a United States commissioner design ated by [a] circ uit court . .. shall be empow ered to compel the wit nesses to appear and depose i n t he same manner as to appear and testi fy in court”). 6 Since then, Congress has substantially 6 “A letter rogatory is the request b y a domesti c court to a f oreign cou rt to ta ke eviden ce from a cert ain wit ness.” In tel, 542 U.S. at 247 n.1 (citation modified).

15 broadened the scope of the discovery assistance tha t federal cour ts may provide for foreign proceed ings. See Int el, 542 U.S. at 247- 49; see also Gianoli Aldunate, 3 F.3d at 57 (“The e volutionary proce ss from the 18 55 act to the curren t statute . . . has generally bee n one of increas ingly broad app licability.”). The current versi on of the statut e reflects this history. It ve s t s a d istr ict court w ith th e power to compel a pers on who resides in or is found in that district to give “testimony or [a ] statemen t or to produce a doc ument or othe r thing for use in a proceeding in a foreign or international tribu nal.” 28 U.S.C. §1782(a). In other words, both wr itten and te stimonial dis co very is available. Cf. Act of June 25, 19 48, ch. 646, §1 782, 62 Sta t. 949 (“The depos ition of any witness res iding wit hin t he Un ited S t ates to be u sed in any civil action pending in any court in a for eign co untry. . . may be tak en before a per son authorized . . . by the district court of any district where the witness r esides or may be found.”). T he stat ut e allows a r equest to be ma de by “a for eign or interna tional tribun al or u pon the a pplication of any i nterested perso n.” 28 U.S. C. §1782(a) (emphasis added); s e e Gianoli Aldun ate, 3 F.3d at 57 (disc ussing 1964 a mendments which “allowed not only fore ign tribunal s and officials to initiate the proces s, but also priv ate litigants (‘any in terested pers on’)” (quoting Pub. L. No. 88-619, 78

16 Stat. 995, 997 (1964)). Fina lly, the statute empow ers a court to “prescribe the practice and procedu re” of the disco very; otherwise, the Fede ral Rules of C ivil Procedure govern. 28 U.S.C. §1782(a). Th is language, which Congress added in 1964, “gives the court complet e discretion in prescribin g the procedure to be followed. It permits, but does not comma nd, following the foreign or international pract ice.” S. Rep. No. 88-1580, at 8- 9 (1964), as rep rinted in 1964 U.S.C.C.A.N. 3782, 3789 (emph asis added). And “irrespecti ve of wheth er the foreign or internat ional proceedi ng or in vestigation is of a criminal, c ivil, administrative, or other nature,” the Feder al Rules of Civil Procedure apply to the disc overy. Id. at 9. B. Section 1782’s T wo-Step Inqui ry “ A district court an alyzes a §1782 petition in two steps.” Ba noka S.à.r.l. v. Elliot Mgmt. Corp., 14 8 F.4th 54, 64 (2 d Cir. 2025). F irst, a cour t must sa tisf y itse lf that the s tatuto ry, or jurisdictional, requirements are met: (1) the person from whom discovery is sought resides (or is found) in the district of the dis trict court to wh ich the application is made, (2) the disc overy is for use in a foreign proceeding befo re a foreign or international trib unal, and (3) the applicat ion is made by a fore ign or internati onal tribunal or any int erested person. Fed. Republic of Nigeri a v. VR Advisory Servs., Ltd., 27 F.4th 136, 148 (2d Cir. 2 022)

17 (citation modified). Second, “[o] nce those statutory req uirements are met, a di strict court may grant discovery under §1782 in its discreti on.” Mees v. Buit er, 793 F.3d 291, 297 (2d Cir. 2015). “Th is discretion, however, is not boundless, b ut must be exer cised in light of the t win ai ms of the statu te: pro viding efficient means of assistance to partic ipa nts in in ter nat iona l lit iga tion in o ur fe der al cour ts and enc oura gin g foreign countries by example to prov ide similar means of ass istance to our courts. ” Id. at 297-98 (citation modifie d); se e also In re Metallgese llschaft, 121 F.3d 77, 79 (2d Cir. 1997). “To evaluate whether gr anting an applica tion would further th ose aims, courts are t o consider four factors t hat the Supreme Court laid out in Intel.” F ed. Republic of Nigeria, 2 7 F.4th at 148. Those factors are: (1) whether “t he person from whom disc overy i s sought is a participant in the for eign proceeding,” in which event “the need for §1782(a) aid generally is not as apparent as it ord inarily is when evidence is sought from a nonparticipant in the matter arising ab road”; (2) “ the nat ure of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the fo reign gov ernment or the court or agency ab road to U.S. federal - court judicial assistance”; (3) “whe ther the §1782(a) re quest conceals an attempt to circumvent fore ign pr oof - gathering restri ctions or other policies of a foreign c ountry or the Un ited States”; and (4) whether the request i s “unduly intrusiv e or burdensome.” Kiobel, 895 F.3d at 24 4 (quoting Intel, 542 U.S. at 26 4-65).

18 The Intel factors are not ex clusive, and they “are not to be applied mechanically. A district court should also take into account any other pertinen t issues arising fro m the facts of the particular dispute.” Id. at 244-45. B ut “w hi le a district court may fr eely cons ider and weigh factors that it finds r elev ant – e ve n those which do no t fall neatly w ithin one of the four Intel fac tors – it abuses its discreti on when it imposes strict requirements related to t hose factors that go beyond the limi tations found d irectly wit hin the statute.” Ban oka, 148 F.4th a t 65. W e have long “read [S ]ection 1782’s investment of broa d discretion in the district courts as an invitation for district j udges to fashion cre ative means of imple men tin g the s ta tute’s do uble g oal. ” Euromepa S.A. v. R. Esmerian, I nc., 51 F.3d 1095, 1102 (2d C ir. 1995). For exampl e, “the d istr ict co urt c an ut ilize its powers under the Federal Rules of C ivil Proce dure to lessen s ignificantly the burden of hand ling [the ] discov ery. ” In re Malev Hungaria n Airlines, 964 F.2d 97, 102 (2d Cir. 1992). “[I]t is far preferable f or a district court to re concil e whatever misgivings it may have about the impact of its participat ion in the fore ign litigation by issu ing a closely ta ilored discovery order rather t han by simpl y denying relief outright. ” Euromepa, 51 F.3 d at 1101; see al so Malev, 964 F. 2d at 100 (District courts “may impose conditions to mini mize the comp liance burdens, s o

19 long as those cond itions do not impose extra- s tatutor y barr iers to obta ining discov ery.”). C. Discovery under Section 1782 The broad av a ilability of discovery under S ection 1782 means “the role of the distr ict co urts as gatekeepers is paramount. ” In re A ccent Delight Int’ l Ltd., 869 F.3d 121, 134 (2d C ir. 2017). If the d istric t c ourt c onclud es th at the statutor y requirement s are met and its exerci se of discretion is approp r iate, the Section 1782 inqu iry is co mp lete. T he ordinary rules o f discov ery then apply: The s e ction 1782 scre en — the judic ial inq uiry tha t the sta tute r equires — is designe d for pr eventing abuses of the right to cond uct disc overy in a federa l district court fo r use in a foreign court. Once the court has determined tha t such abuses ar e unlik ely, the ordinar y tools of discov ery manageme nt, including Rule 26, come into play; and with objections based on the fact th at discovery is being sou ght for us e in a foreign court c leared aw ay, sec tion 1782 dr ops out. Heraeus Kulzer, Gmb H v. Biomet, Inc., 633 F.3d 591, 597 (7th Cir. 2011) (Posner, J.). In other words, o nce a district court has ope ned the statutor y gate to discov ery, any disputes aroun d its proper scope are gov erned by the ordinary rules of discov ery, including the Federal Ru les of Civil Procedure. See id.; accord Gov’t of Ghana v. ProEnergy S ervs., LLC, 677 F.3d 340, 343 (8 th Cir. 2012) (“[Section 1782] provides for a thr eshold determina tion of whethe r to allow for eign litigants to enjoy di scovery in U.S. co urts in accordance wi th federal rules. The manner i n

20 which disc overy proceed s will be determined by normal discov ery rules.” (citation modified)); Banco Pueyo SA v. Lone Star F und IX (US), L.P., 55 F.4th 4 69, 474-75 (5th Cir. 20 22) (explain ing that the Section 1782 in quiry “drops out” after the ini ti al inq uiry, m eaning that “the next stage of pr oceedings, after full resolution of the s tatutory bas is for discovery, occurs under th e Federal Rules for discov ery’s s cope”). Indeed, Section 178 2 expressly provides that the F ederal Rules gov ern the procedure s for discov ery. See 2 8 U.S.C. § 1782(a) (“ To the exte nt that the ord er does not pre scribe otherwise, t he testimony or statement s hall be taken, and the document or other t hing prod uced, in acc ordance with the Fed eral Rules of Civ il Procedure. ”). And a distric t cour t may issue a discov ery order under Sectio n 1782, even if the co ur t ulti mately de ter mines th at the s pecific discovery requests issued pu rsuant to the order are barred under those r ules. See Edelman, 29 5 F. 3d at 180-81. In Edelman, we addressed “whether an i ndividual, who lives and works abroad, may be sub ject to being sub poenaed for deposition purs uant to §1782(a) while travelin g in th e U nited S ta tes.” Id. at 173. We concl uded that “ [a]s a matter of law, a person who liv es and works in a foreign country is not nece ssarily

21 beyond the reach of §1782(a) simply be cause the dis trict judge signed the discov ery order a t a time when that prospective deponent w as not phys ically present in the district.” Id. at 180. B u t we acknowledged that the Section 17 82 inquir y was not the end of the ana lysis. T he deposition subpo ena could sti ll be quashed pursuant to Rule 4 5 if it “requires a person who is not a party or an officer of a party to travel to a place more than 100 mi les from the place where that perso n resides, is employ ed or regu larly transacts busi ness in person.” Id. at 181 (quot ing Fe d. R. C iv. P. 45(c)(3)(A)(ii) (amended 2013)). 7 W e also observed that Rule 26’s protect ions are available after the issuance of a S ection 1782 order “to protect a party or per son from annoyance, embarrassment, oppress ion, or undue burd en or expense.” Id. at 178 (quo ting Fed. R. C iv. P. 26(c)). Ru les 45 and 26 thus impose importan t limitations on the scope of d iscovery av ailable to the peti tioner, b ut th ose li mitat ions c o me in to p lay o nly after – and separate ly from – t he determination of whether discov ery is authorize d under Se ction 1782. W ith this under stand ing of a district c ourt’s authority an d discre tion under Section 1782, we turn to the question pre s ented. 7 Th e current ve rsion of this provision is found in Rul e 45(c)(1)(A) a nd (d)(3)(A)(ii).

22 II. The District Court did not abu se its discretion whe n it grante d SBK’s petition. Akin does not dispute that the District Co urt had jurisdiction under Section 1782 to gr ant the petition. The que stion before this C ourt is narrow: d id the Dist rict Court abuse its disc retion in granting a Secti on 1782 petition for discov ery fro m a clien t’s law fir m whe n t h e materials sought were un discoverable from the cl ient abroad? 8 Akin con tends that th is Court’s de cision in Kiobel requires us to conclude that the District Cou rt abused its discretio n. As w e explain below, th e Dis tr ict Co urt did not co mm it le gal e r ror in inter pre ting and ap p lyin g Kiobel. Kiob el did not change the we l l - settled rule that Section 1782 does no t impos e a “fore ign- discov erability requi re ment.” Intel, 542 U.S. at 253. And “we have not authorized de nial of discovery pursuant to §1782 solely because such discovery is unavailable in the foreign cour t.” Banoka, 148 F.4th at 65 (cita tion modified). W e also reject Akin’s alterna tive argument that this case should be re manded for the District Court to consider certain exterrito riality factors. 8 W e assum e for purpos es of this decis ion that the mate rials that S BK sou ght were i n fact undis coverable fr om the client.

23 A. The District Court did not abu se its discretion und er Kiobel. The Distr ict Cou rt properly rejected A kin’s arguments that Kiobel requires denial of the petit ion. See SBK II, 202 5 WL 1537474, at *9-12. In Kiobel, we addressed a petition seeking documents f rom the law firm Cra v ath, Swaine & Moore LLP (“Cravath”) for us e in a la ws uit a gains t its client, Royal Dut ch Sh ell (“Shell”), in the Netherlands. See 895 F.3d at 240. The petitioner, Esther Kiobel, sought a subpoena f or all deposit ion trans cripts, documen ts, and communications that Shell had produced to he r in pr ior liti gat ion. See id. at 241. That discovery, howev er, was subject to a s tipula ted confidenti ality order. See id. “Kiobel did not sub poena She ll, only Cravath,” id. at 242, wh ic h was “holding the documents bec ause it represented Shell in prior litigation,” id. at 240. W e held that the district court abused its discretion in granting the petition, “in light of the Intel factors, the res pect owed to confidentiality orde rs, and the con cerns for la w ye r - c lien t r elat ion s.” Id. at 248. Focusing on our third rationale – p olicy concerns reg arding lawy er - client relat ions – Akin insi sts that “[t]his case is controlled by K iobel ’s ob serv ation that ‘a distr ict cour t shoul d not exercise its disc retion to gran t a Section 1782 pe tition for documents held by a U.S. law firm in its r ole as counsel for a foreign clien t if

24 the documents are u ndiscoverable from the client abroad, bec ause this wou ld disturb attorney -cl ient commun ications and relat ions.’ ” Appellan t’s Br. at 26-27 (quo ting Kiobel, 895 F.3d at 246). W e d isagre e. First, n either Kiobel n or the cases i t relied on establish a cate go rical limit atio n under Sect ion 1782 barring discovery of documen ts held by a law firm if those documents a re undiscoverable fro m the client abroad. Second, our rulin g i n Kiobel re sted on our weigh ing of the Intel factors, wh ich is not chall enged here, and the e xistence of the c onfidentialit y order, a factor als o not present here. T hird, the rule Akin seeks to impose would create a foreign - discov erab ility requirement contrary to longstanding precedent. And f o urth, the District Court correctly determined that Akin’s concerns regar ding pr ivilege and burden can be addre ssed under the ordinary r ules of discovery. 1. Our previously expressed polic y concern s do not support a categorical limitatio n on Section 178 2 discovery. Kiobel relied on two prior cases in ar ticulat ing the po licy concerns around attorney - client relati ons: In re Sarrio, S. A., 119 F.3d 143 (2d Cir. 1997), and Ratliff v. Davis Polk & W ard well, 354 F.3d 165 (2d C ir. 2003). In Sarrio, th is Court consider ed “whether the attorney - c lien t pr iv ilege shields documents u ndiscoverable abroad b ut transferred to an attorney in the

25 United States for ad vice on the ir amenabi lity to §1782 sub poena.” Sarrio, 119 F.3d at 147. The dis trict cour t had he ld that Ch ase Manhattan Bank (“Chase”) “w as not obl igated to produce document s that were held abroad b y Chase but deliv ered to New Y ork to be review ed by counsel.” Id. at 145. Addressing the question of whether Chase ’s documents were protected by attorne y - clien t privileg e, w e explained that “the policy of promoting open communications betw een lawy ers and their client s . . . would be jeopar dized if documen ts unreachabl e in a foreign country became dis covera b le because the p erson holding the docu ments sent the m to a lawyer in the Unite d States.” Id. a t 146. W e declined, how e ver, to reach the issue because Chase n o longer asserted it s privilege on appe al, rendering the issu e moot. See id. at 147. Sa rrio thus pro vides no holding on the iss ue before us now. Ratliff considered th is dicta from Sarrio. T he Ratliff plaintiffs sought documents from the law firm Dav is Polk & W ar dwell (“Davis Polk”); thos e documents belon ged to Davis Polk’s clien t but came unde r the firm’s con trol during it s representation of the client. See Ratliff, 354 F.3d at 167. “D avis Polk . . . argued th at under Sa rrio documentar y evidence is not av a ilable from a lawy er custodian, even absent attorney - c lient privi lege, if the court does not hav e

26 jurisdic tion ov er the client /document owner.” Id. The distri ct court agreed and denied the pla intiffs’ motion to com pel. See id. at 168. W e reversed b ecause the client had volun tarily author ized Davis Polk to send the do cuments to the Securities and Exchange Commission (“S EC”): [E]ven if Davis Polk . . . is cla imin g the pr otection discussed in Sarrio, that pro tecti on, even if it had b een the holdin g of Sarrio, would no t av ail Davis Po lk in this case. Even if we assume that, when the doc um en t s were se n t b y [th e cl ie nt] to Da vi s Po lk to se cu re the fir m’s legal advice, they were entitled to protect ion, such protec tion was lost when [the clien t] voluntarily au thorized D avis Polk to se nd the documents to the SEC. . . . [A]ny such protection does not co ntinue when the client volu ntarily discloses the documents to a third party, here a gov ernment agency. Id. at 170. W e ass umed, but d id not decide, that the docu ments would h ave been entit led to so me prot ection because they w ere held by a law firm. Kiobel discuss ed Sarrio and Ratliff. Akin quotes from that discuss ion in a manner tha t sugges ts Kiobel a ltered the longstanding principle s governi ng Section 1782 pet itions, at leas t when thos e petitions seek d iscovery from a law firm. See Appellant’s Br. at 26-27. Bu t an ex amina tion of th e f uller dis cuss ion in Kiobel rev eals t ha t it did no such thing: Therefore, although our Court in Ratliff held that Davis Pol k w as subject to [the plaintiff’ s] subp oena, Ratliff di d not d isturb S arrio ’s suggesti on tha t a di strict co urt sh ould n ot ex ercise its discr etion to grant a Section 1782 petition for documen ts held by a U.S. law firm in

27 its role as couns el for a foreign client if the docu ments are undiscoverable from the c lient abroa d, becaus e this woul d disturb attorney - client comm unications and relations. Sarrio, 119 F.3d at 146; Ratliff, 354 F.3d a t 170. Kiobel, 895 F.3d at 24 6. Rather, in Kiobel, we simply offered a c ommentary on the inter pla y of Sarrio an d Ratliff. Those cases, and the policy concerns they raised, w ere relevant to our discussion, but not t he sole basis for o ur decis ion. 2. The Intel factors and the confidenti ality order were essential to the Kiobel decisio n. W e also found p ertin ent two other groun ds – the Intel factors and the confidentiality orde r – which Akin downp lays. Kiobel itself emphasized t he fact- intensive nature of the Se ction 1782 analys is. See id. at 245 (“ A district cour t should also take into account any other pe rtinent issues arising from the fac ts of the particular dispute.” (e mphasis added)). A nd in fact, the Kiobel Court observ ed that the con fiden tia lity or der in place made t he case “ extraordinary, and possib ly unique. ” Id. a t 24 6-4 7. As t he District Court corre ctly stated, Kiobel “did no t paint with the broad brush that Akin imagines” but “instead followed from the circumstances of that case.” SBK II, 2025 WL 15374 74, at *10. T he Distric t Cour t did not err in concluding that Kiobel is dis ting uish ab le and doe s not control t h is case. T wo of the Intel factor s weighed against the Kiobel pe tit ion, d is ting uish ing

28 it from t he petition here. T he first factor, whether “the pe rson from who m discov ery is sought is a participant in the foreign proce eding,” Intel, 542 U.S. at 264, counseled aga inst granting the p etition because the real party from whom the documents were sought w as not Cravath, but Shell. See Ki obel, 895 F.3d a t 245. T he third factor, “whether the §1782(a) r equest conceals a n attempt to circumvent foreign proof- gathering restricti ons or other polici e s of a forei gn country or the Uni ted States,” In tel, 542 U.S. at 265, also weighed against granting the peti tion bec ause “statements m ade by Kiobe l’s counsel de monstrate[d] th at Kiobe l [w as] trying to circ umvent the Netherland s’ more restrictiv e discov ery practices, which [wa s ] why they [were] seeking to gather discov ery from Crav ath in the U.S.” Kiobe l, 895 F.3d a t 245. Here, as found by the Magis trate Judge a nd adopted b y the District J udge, only on e of the Intel f actors weighs against grant ing SBK’s pet ition. See SB K I, 2024 WL 4264893, at *14. Further, Ak in does not challenge t he D istric t Co urt ’s balancing of the Intel factors. See Reply at 4 (ass erting that the “perti nent issue is not how the district co urt balanced the fo ur specified Inte l factors ” (emphasis added)

29 (citation modified)). 9 Even more significantly, w e found the confidentiality order in Kiobel dispositive. See Kiobel, 895 F.3 d at 246-47. S pecifically, even though a st ipulated confidentiality orde r res tricted Kiobel fro m using Shel l’s confidentia l documents without Sh ell ’s agreement or a court order, the district c our t in Kiobel “required [Kiobel and Cravath] to sign a new st ipulation” with fewer p rotections. Id. at 241-42. “Under the n ew stipula tion, Shell ha[d] no r ight to enf orce a bre ach of confidentiality.” Id. at 242. On appeal, we concluded that “[t]he decision to alter the confidentiality or der without She ll’s participat ion, and wit hout considering the costs of disclosur e to Shell, ma kes this case exceptional, an d mandates reversal.” Id. at 247 (emphasis added). W e emphasi zed that “[p ]rotective orders serve the vi tal funct ion of securing the jus t, speedy, and inexpensive determination of c ivil disputes by enco uraging f ull disclos ure of all evidence that might co nceiv ably be relev ant. This objectiv e represents the cornerstone of our administration of ci vil justice.” Id. (citatio n modified). The dist ric t co urt ’s d iscovery order in Kiobel e ffect ively a llowed Section 9 Although Akin also argued before the District Co urt that “the P etition attempts an end run around applicable sanctions law in the Unite d Kingdom and the EU,” A kin has abandoned tha t arg ument on appeal. S BK II, 2025 WL 1537474, at *8.

30 1782 to “become a workaround to gain discovery” while ev ading the confidentiality agree ment. Id. Th at is the kind of abus e of proces s that we hav e directed district courts to prev ent when eval uatin g Section 178 2 petitions. See Euromepa, 51 F.3d at 1101 n.6 (“[I]f the district court dete rmines that a party’s discov ery appl ication under [S]ection 178 2 is made in bad fa ith, for the pur pose of harassm ent, or unreasonably seek s cumulativ e or irrelev ant materials, t he court is free to deny t he application i n toto, just as it can if disco very w as s ought in bad faith in domes tic litigation.”); accord Heraeu s Kulzer, 633 F.3d at 594 (“[D]istrict courts m ust be alert for potential abuses that woul d w arrant a de nial of an application to b e allowed to take suc h discovery.”). G rant ing S BK’s pet iti on d id no t re quir e m odify ing an y exis tin g confidentiality orde r, and Ak in here does not argue (nor did th e D istrict Co urt find) th at SBK’s petit ion w as “ma de in bad faith, for the purpo se of harassment, or unreasonably [s ought] cumulativ e or irrelev ant material s.” Euromepa, 51 F.3 d at 1101 n.6. Th us, Kiobel is d istinguishabl e and does not c ontrol. 3. Section 1782 does no t impose a forei gn-discoverability requirement. Akin con tends that “the critical quest ion here is whether the relev ant documents are obta inable from Fortenova through foreign discovery

31 procedures.” Rep ly at 10. In so do ing, Akin asks us to adopt a “foreign- discov erab ility” requirement under Sectio n 1782 just for d iscovery sought fro m law fir ms. B ut no su ch requirement exists, and i mposing one would contradict both Supreme Court and Second Ci rcuit precedent. The Suprem e Court expressly held in Inte l that Sect ion 1782 doe s not include a foreign- dis covera bilit y r ule – that is, the statute doe s not requi re a “ threshold showing by the party seek ing discov ery that what is sought be discov erab le in the foreig n proceeding.” Intel, 542 U.S. at 252- 53 (citation modified). Intel a pproved this Court’s decision in Gia noli Aldun ate, see id. at 26 0, in wh ich we like wise held tha t tha t no suc h requirement exi sts in the statute, expla inin g: Given th at t he s tat ut ory la ngu age is sile nt a nd the leg isl ative h istor y indicates that in exercising its discretionary pow er, the court may take into accou nt the n ature and attitudes of the government of the country from which t he request emana tes and the character of t he proceedings in th at country, we find it difficult to believe t hat Congress actually intended s ection 17 82 to have an implicit r equiremen t that any evidence s ought in the United States be discov erable under the laws of the foreign countr y. Gianoli Aldunate, 3 F. 3d at 59 (citat ion modified). Althou gh “d istric t judges may wel l find that in appr opriate cases a de termination of discoverability under the laws of the foreign jurisdiction is a usef ul tool in the ir exercise of discretion,” id.

32 at 60, “f oreign discov erability cannot be used. . . as [] a b lunt i nstrumen t,” Metallgesellschaft, 121 F.3d at 80; see also Mees, 793 F.3d at 303 (e mphasizing that “the av ailabilit y of the discovery in the for eign proceeding sho uld not be afforded undue weight”). Thus, we c annot imp ose categorical limitations on Sec tion 1782 ’s reach, even i n the face of str ong policy concerns surrounding protecti on of attorney - client re latio ns. C f. Intel, 542 U.S. at 261 (“While comit y and parity conce rns may be important as touchstones for a dis trict cour t’ s exercise of discreti on in particular cases, th ey do not per mit our inse rtion of a generally applicable foreign-discoverability rule into the text o f §1782(a).”). 4. Akin’s concerns are properly addres sed under or dinary discovery rules. Akin’s argumen t ultimate ly is not abo ut the risk of d isclosing privileged materials; indeed, ne ither SBK’s proposed s ubpoena nor the D istrict Cour t’s order requi res disclos ure of such docume nts. See SBK I, 2 024 WL 42648 93, at *20 (narrowing subpoe na to “non- pr ivileged materials that are uniqu ely possessed by Akin or that have been s hared with thir d parties other than Fortenova”); accord 28 U.S.C. §178 2(a) (“ A person may not be compelle d to give his testimony or statement or to pr oduce a documen t or other t hin g in viola ti on of any lega lly

33 applicable privilege. ”). Rather, Akin argue s that “[n]umerous documents created by Akin in its role as a legal adv isor, negot iator, or evaluator for Fortenova . . . risk disclosure if they are deemed t o be n either attorney - client privileged nor attorney work pr oduct.” Appellant’s Br. at 42. Cond ucting a “documen t- by - document review to determine wh ether a documen t is better categorized as lawy er ing or lobbying [wi ll force] clients (and their law firms) . . . to unde rgo a tedious and expens ive exercise.” Appellant’s Br. at 47. According to Ak in, because this risk of di sclos ure imp lica tes K iobel ’s policy concern s, the District Court should have denied S BK’s pet ition outrigh t. W e disagree. As ex plained, Kiobel ’s policy concer ns alone do n ot require denial, and the D istrict C our t did not abuse its discretion in granting the pe tition, in spite of the potential burdens that may be imp osed on Akin in respond ing. The Dist rict Court properly fas hioned its order to meet the tw in aims of Section 1782. See Me es, 793 F.3d at 297-98. Specifical ly, t he D istr ict C our t lim ited the scope of the s ubpoenas to top ics that it found relevant to either or both the Malta Action and the EU Action; it tailore d the time peri od for documen t production to Feb ruary 1, 2022, through D ecember 31, 2023; and it limit ed production to only non -privileged materials un iquely posse ssed by Akin or

34 shared with third parties other tha n Forte nov a. See SBK II, 2025 WL 153 7474, at *12-13. Thro ugh the se limitat ions, the Dist rict C ourt pro perly balanced SBK ’s need for discovery to assist it i n foreign lit igation with Akin’s c oncerns r egarding attorney - client relati ons and undue burden. T h e Dis tric t Cour t recognized that Akin’s concerns about these issues cou ld and should be address ed through normal discovery procedure s. See id. at * 12 (“ Akin remains a t liberty to file non - frivolous overbreadth objections to par ticular subpoen a calls.”). As noted, Section 17 82 merely acts as a gat e designed to prevent abuses. See Accent Delight, 86 9 F.3d at 134; Heraeus Kulzer, 6 33 F.3d at 5 97. The D is trict Court, in grantin g SBK’s pet ition, opened th e gate t o permit SBK to see k discov ery f ro m Akin; once the disc overy requests are for mally issued, th e ordinary rules of d iscovery wil l govern any disputes regardin g specific mater ials. Those rul es will adequatel y protect Ak in. See, e.g., Edelma n, 295 F.3d at 181 (“ Ye t Rule 45 may bar the deposition not withstanding o ur holding t hat [the prospecti ve deponent] is not beyond the s cope of §1782(a).”). Akin may mov e to quash any r equests issued or may seek a pr otecti ve order if necessary to protect it or any person “ from ann oy ance, e mbarrassment, oppression, or und ue burde n or expense.” Fe d. R. Civ. P. 26(c)(1). And of

35 course, under Ru le 26(c), the D istrict Cou rt has broad discre tion to fashion a protective order as appropr iate, includin g to “forbid[] the disclosure or discov ery”; “prescrib[e] a discov ery method other th an the one selected by the party seeking disc overy;” or “forbid[] in quiry int o certa in matters, or limit[] the scope of disclosure o r discovery to certain matters.” Id. We leav e it to the District Court to resolv e any future disputes ov er specific discov ery re quests. W e conclude toda y that the Dis trict Court did not abuse its discretion in open ing the gate to disc overy under Section 1782. * * * In su m, a distric t court is not pr ecluded from iss uing a n order under Section 1782 for d iscovery from a law fir m seeking materi als connected with its representat ion of a foreign client solely bec ause the materi als sought are undiscoverable from the cl ient abroad. Ki obel merely a pplie d t he well - settled principles governing Section 17 82 petition s to the facts of th at case, and b ecause Kiobel is dis tin guis ha ble, the D ist rict C our t did n ot a buse its di scr etion in granting the app lication for d iscov ery fr om Akin. Any rema in ing ob jec tions concerning privilege or burden may be res olv ed by the Distr ict Cour t applyin g

36 the ordinary r ules of discovery. 10 B. The District Court did not abu se its discretion und er Banoka. Akin argues i n the alternativ e that, ev en if w e do no t agree that Kiobel require s reversal, we should v acate and rema nd with instructions to con sider certain extraterritoriali ty factors, inc ludin g “the for eign location of the documents and the ir primary custodians.” Appellant’s Br. at 51. Akin relies on a recent decision in which we affirme d the d enial of a Sect ion 1782 petition based, in part, on the district court’ s concerns about extra territorial discov ery. See Banoka, 148 F.4th at 68 -70. But noth ing in Banoka requi res a district court t o consider these extraterrit oriality factors. And in any ev ent, the District Court here actually considere d those factors. In Banoka, we rev iewed a district court’s finding that t he petitioner’s 10 To the exte nt the D istric t Court reste d its dec ision on a separate “l obbying” exception, we do not rely on any s uch dis tinction. Moreove r, we ex press no vi ew as t o whe ther Akin engage d in lobbying when it prepared the Akin Opinio n or in connectio n with other acti ons, or a s to wh ether docum ents prep ared or acqu ired by Akin in the context of thos e efforts are non - privileged. To the exten t the questi on of whether and when Akin engage d in lobbying is rel eva nt to the privileged status of any recor ds in Ak in’s possessio n, disputes abou t th is quest ion are among thos e to be res olv ed in the c ourse of discovery rather t han as an element of t he Section 1782 analysis. See Fi rst NBC Bank v. Murex, LLC, 259 F. Supp. 3d 38, 61 (S.D.N.Y. 2017) (discussing the differences between legal w ork and lobb ying work); In re Grand Jury Subpoenas dated Mar. 9, 2001, 179 F. Supp. 2d 270, 285 (S.D.N.Y. 2001) (explaining privilege differ ences between legal and lobbyi ng work).

37 discov ery re quests w ere unduly burdensome u nder the fourth Intel factor. See i d. at 68; see Intel, 542 U. S. at 265 (“ Also, unduly intrusiv e or burdensome requests may be rej ected or trimmed.”). When ana lyzing this factor, a court “shou ld assess wheth er the discov ery sought is ov erbroad or unduly burdenso me by applying the fam iliar standards of Rule 26.” Mees, 793 F.3 d at 302. Rule 26 allows parties to ob tain discovery of mat erial that is “relev ant to any party’s claim or defense and propor tional to the n eeds of the case,” wh ile considering, among other th ing s, “whether the burden or expense o f the proposed discov ery outw e ighs its likely b enefit.” Fed. R. C iv. P. 26(b)(1). Thus, a “ court must limit the frequ ency or extent of discov ery otherwise a llowed i f it determines that the discov ery so ught is u nreasonably cumu lative or duplicative, or can be obtained from som e other source that is more c onvenient, l ess burdensome, or less expensiv e.” Ba noka, 148 F.4th at 6 8- 69 (citation modified). “[T]h e ultimate question of burde nsomeness is within the district court’s discre tion to decide, and not ours.” Fed. Republic of Niger ia, 27 F.4th a t 159. Applying these principles, we found no abuse of discretion in the district court’s considerati on of “the forei gn locati on of the documen ts and the for eign status of their pr imary custodian under the fourth Intel factor.” Banoka, 148 F.4th

38 at 70 (citation mod ified). Those fac ts – cou pled w ith the ov erbr eadth of the request and the fact that the respon dent U.S. company was “operationally distinct” from the foreign entities that held the documents – le d the d istr ict c ourt to weigh the fo urth I ntel factor aga inst the petitioner. Id. at 69-70. W e affirmed. But wh ile Banoka found it w as not an abus e of discret ion to consider the forei gn location of document s, it d id n ot i mpos e a rule requ iring cons ideration of that factor. That th e Bano ka d istr ict c o urt did n ot abuse its discre tion in den ying th at petition does not mean the Distr ict C our t her e abu sed it s d iscr etio n in granting th is pe tit ion. Ba noka merely underscores the wel l - settled principle that a d istr ict court has broad discretion un der Section 1 782. See id. at 65. As the District Cour t stated: “[The R&R] sign ificantly limite d the requested discov ery, and found that the burde n presented [b y] the approved discovery justified by the nee ds of SBK’s fore ign litig ation, which, aims t o recoup approximately 500 million euros in losses alleged suffered by S BK as a resu lt of the Corporate Chan ges.” SBK II, 2 025 WL 1537474, at *12 n.8. Further, the District C ourt was fu lly awa re of the extraterritori al nature of the discov ery. See, e.g., SBK I, 2024 WL 4 264893, at *19- 20 (addre ssing Ak in’s burd en argument tha t proposed subpoenas would “ d iscourage clients fro m hiring the foreign o ffice of

39 American law fir ms ”). In assessing th e propor tionality and bu rden issues, the Distr ict Co ur t ac ted well wit hin its d iscr etio n. B ecause the Di strict Court here w eighed all relev ant consideration s, v acatur and rem and on this alternativ e ba sis is not w arranted. CONCLUSION For the foreg oing reasons, the Dist r ict Court’s order is AFFIR MED.