Certified Translation of U.S. Discovery for International Probate
The Reach of Section 1782 When U.S. Discovery Meets Swiss Probate: In re Safra
Certified legal document translation services play an important role in U.S. discovery. In the international legal arena, few tools are as powerful—or as misunderstood—as 28 U.S.C. § 1782, the U.S. statute that allows parties in foreign proceedings to seek discovery from individuals or entities located in the United States. The statute came into sharp focus in In re Safra, a dispute involving one of the world’s wealthiest banking families and a testamentary contest in a Swiss court.
Section 1782: A Tool for Cross-Border Discovery
This case is particularly significant for estate planners, international litigators, and private clients. It illustrates the intersection of foreign probate disputes with U.S. discovery practices, and it highlights how U.S. courts evaluate discovery requests under Section 1782 when medical evidence is sought to challenge a decedent’s testamentary capacity abroad.
Background: A High-Stakes Family Dispute
In In re Safra, Alberto Safra sought discovery in New York for use in a Swiss legal proceeding where he was challenging two late-2019 wills executed by his father, Joseph Yacoub Safra—a Brazilian banking magnate—on grounds of incapacity and undue influence. The contested wills had excluded Alberto from inheritance.
To prove his father lacked testamentary capacity at the time the wills were signed, Alberto requested medical records and deposition testimony from doctors affiliated with Mount Sinai and Memorial Sloan Kettering, as well as from the institutions themselves. All of the targeted witnesses and institutions were located in the Southern District of New York, satisfying the venue requirement under Section 1782.
In In re Safra, the Southern District of New York granted a request under 28 U.S.C. § 1782 to obtain U.S. medical testimony and records for use in Swiss probate litigation, affirming that even in foreign estate disputes, American discovery is available when requests are properly supported, proportionate, and meet statutory and discretionary criteria.
28 U.S.C. § 1782 allows litigants in foreign legal proceedings to obtain discovery—including documents and depositions—from U.S.-based individuals or entities. To grant such a request, the court must confirm that:
1. The person or entity from whom discovery is sought resides or is found in the district.
2. The discovery is for use in a proceeding in a foreign tribunal.
3. The application is made by a foreign tribunal or an “interested person,” such as a litigant.
In In re Safra, all three statutory requirements were met. The Respondents (doctors and hospitals) were located in New York, the discovery was to be used in Swiss probate litigation, and Alberto—an excluded heir challenging the wills—was clearly an “interested person.”
But even when these statutory elements are satisfied, a court has discretion to grant or deny the application.
The Intel Factors: Discretion in Action
The U.S. Supreme Court’s opinion in Intel Corp. v. Advanced Micro Devices, Inc. guides courts in applying discretion under Section 1782. The court considers four key factors:
1. Whether the target is a party to the foreign proceeding.
2. The nature and receptivity of the foreign tribunal.
3. Whether the request circumvents foreign proof-gathering restrictions.
4. Whether the discovery request is unduly intrusive or burdensome.
In the Safra case, the court found that all four discretionary factors favored granting the request.
1. Targets Were Nonparticipants
The doctors and hospitals were not parties to the Swiss probate case. As such, the Swiss court could not compel them to testify or produce documents—precisely the type of situation Section 1782 is designed to address.
2. Swiss Court Receptivity
Vicky Safra, Alberto’s mother and a major beneficiary of the contested wills, argued that Swiss courts would not admit U.S. deposition testimony. However, the court found insufficient evidence that Swiss courts would reject the requested evidence. Alberto had filed expert declarations from Swiss legal professionals confirming the potential admissibility.
3. No Circumvention
The court found no evidence that Alberto was attempting to circumvent Swiss procedural rules. Instead, he was supplementing the foreign record with evidence that may be difficult or impossible to obtain in Switzerland.
4. Narrow and Proportional Requests
The court considered the scope of Alberto’s requests and found them to be reasonable, especially after some narrowing and negotiation with the Respondents. There was no sign of abusive or excessively burdensome demands.
Opposition Arguments: Procedural, Not Substantive
Vicky Safra raised two main objections:
1. That the depositions would be inadmissible in Swiss court.
2. That the request for medical records was overly broad, covering years outside the relevant period.
The court rejected both. It noted that Swiss admissibility concerns did not defeat the application unless there was authoritative evidence that the foreign court would flatly reject the U.S.-gathered discovery. Vicky failed to meet that standard.
As for the breadth of the request, the court emphasized that it had the authority to tailor discovery as needed to limit intrusiveness and protect privacy, rather than deny the application outright.
What This Means for Estate Litigators
The Safra case shows how Section 1782 can be a game-changer in cross-border estate litigation. Here are some key takeaways:
1. Testamentary Capacity Can Be Probed with U.S. Medical Records
When the mental state of a decedent is at issue, medical evidence becomes crucial. If treating physicians or hospitals are located in the U.S., Section 1782 can unlock that evidence for foreign proceedings.
2. Deposition Testimony May Be Available—Even if the Foreign Court May Not Use It
The court emphasized that U.S. discovery rules are broader than many foreign systems, and Section 1782 does not require proof of admissibility in the foreign forum. The question is whether the foreign proceeding may benefit from the evidence, not whether it must.
3. Parties Must Show Relevance and Restraint
Although broad requests are allowed, they must be reasonably tailored. In the Safra case, the applicant negotiated the scope of his requests to limit unnecessary burdens on the respondents—a practice that courts appreciate.
4. Twin Aims of Section 1782
U.S. courts prioritize the twin aims of Section 1782: aiding foreign tribunals and promoting international legal cooperation. They will not generally reject a request based on speculation about a foreign court’s policies or preferences.
Practical Guidance for International Probate Practitioners
For practitioners preparing a Section 1782 application in an estate or testamentary dispute, careful preparation can significantly influence the outcome.
Begin by identifying relevant witnesses and institutions in the United States—such as treating physicians, healthcare providers, banks, or advisors—who may possess evidence bearing on the decedent’s mental capacity or the integrity of the testamentary process. Establish your standing as an interested party through documentation from the foreign proceeding, including pleadings, affidavits, or declarations from foreign legal counsel.
Once these foundations are laid, tailor the discovery request to focus only on evidence necessary for the claims at issue. Broad or speculative requests are more likely to meet resistance. It is equally important to anticipate objections regarding privacy, burden, or foreign admissibility. Providing assurances regarding the confidentiality of medical or financial records, agreeing to redactions, or proposing protective orders can help mitigate these concerns. Lastly, consider offering context for the foreign tribunal’s receptivity to U.S. discovery—courts respond well to expert declarations showing that the foreign court is willing to consider the requested materials.
In a globalized world, estate disputes increasingly involve multiple jurisdictions, foreign assets, and international beneficiaries. In re Safra is a prime example of how U.S. law can assist in those disputes. It also shows how a strategic and well-supported Section 1782 application can be a powerful tool in international probate litigation, enabling litigants to gather evidence unavailable abroad and support claims related to capacity, undue influence, or fraud. The Safra case demonstrates that U.S. courts are receptive to assisting foreign proceedings when applications are properly prepared and appropriately restrained.
Contact probate genealogy and legal translation experts at All Language Alliance, Inc. to obtain certified translation of U.S. discovery from English to German; French; Italian; Czech; Polish; Greek; Danish; Swedish; Hungarian; Armenian; Croatian; Thai; Simplified Chinese; Turkish; Spanish; Portuguese; Korean; Romanian for foreign probate proceedings; to retain experienced deposition interpreters for on-site depositions and for video depositions via Zoom; to hire a professional genealogist to prove your case.
Case Discussed:
In re Application of Alberto Safra for an Order to Take Discovery for Use in Foreign Proceedings Pursuant to 28 U.S.C. § 1782, Case No. 21-MC-640 (GHW) (JLC), 2022 WL 3584541 (S.D.N.Y. Aug. 22, 2022).
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