INTEL CORP. v. ADVANCED MICRO DEVICES, INC.

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241 OCTOBER TERM, 2003
Syllabus
INTEL CORP. v. ADVANCED MICRO DEVICES, INC.
certiorari to the united states court of appeals for
the ninth circuit
No. 02–572. Argued April 20, 2004—Decided June 21, 2004
In 1964, pursuant to a recommendation by the Commission on Interna-
tional Rules of Judicial Procedure (Rules Commission), and as part of
an endeavor to improve judicial assistance between the United States
and foreign countries, Congress completely revised 28 U. S. C. § 1782(a).
In its current form, § 1782(a) provides that a federal district court “may
order” a person residing or found in the district to give testimony or
produce documents “for use in a proceeding in a foreign or international
tribunal . . . upon the application of any interested person.” The 1964
overhaul of § 1782(a) deleted the prior law’s words, “in any judicial pro-
ceeding pending in any court in a foreign country.” (Emphasis added.)
Respondent Advanced Micro Devices, Inc. (AMD), filed an anti-
trust complaint against petitioner Intel Corporation (Intel) with the
Directorate-General for Competition (DG-Competition) of the Commis-
sion of the European Communities (Commission), alleging that Intel had
violated European competition law. After the DG-Competition de-
clined AMD’s recommendation to seek documents Intel had produced in
a private antitrust suit in an Alabama federal court, AMD petitioned
the District Court for the Northern District of California under § 1782(a)
for an order directing Intel to produce those documents. The District
Court concluded that § 1782(a) did not authorize such discovery. The
Ninth Circuit reversed and remanded with instructions to rule on the
application’s merits. The appeals court observed that § 1782(a) includes
matters before bodies of a quasi-judicial or administrative nature, and,
since 1964, has contained no limitation to foreign proceedings that are
“pending.” A proceeding judicial in character, the Ninth Circuit noted,
was a likely sequel to the Commission investigation. The Court of Ap-
peals rejected Intel’s argument that § 1782(a) called for a threshold
showing that the documents AMD sought, if located in the European
Union, would have been discoverable in the Commission investigation.
Nothing in § 1782(a)’s language or legislative history, the Ninth Circuit
said, required a “foreign-discoverability” rule of that order.
Held: Section 1782(a) authorizes, but does not require, the District Court
to provide discovery aid to AMD. Pp. 254–266.
1. To provide context, the Court summarizes how the Commission,
acting through the DG-Competition, enforces European competition

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242 INTEL CORP. v. ADVANCED MICRO DEVICES, INC.
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laws. Upon receiving a complaint, or sua sponte, the DG-Competition
conducts a preliminary investigation into alleged violations of those
laws. The DG-Competition may consider information provided by a
complainant, and it may seek information from a complaint’s target.
The DG-Competition’s investigation results in a formal written decision
whether to pursue the complaint. If the DG-Competition decides not
to proceed, its decision may be reviewed by the Court of First Instance
and, ultimately, the Court of Justice for the European Communities (Eu-
ropean Court of Justice). When the DG-Competition pursues a com-
plaint, it typically serves the investigation’s target with a formal “state-
ment of objections” and advises the target of its intention to recommend
a decision finding an antitrust violation. The target is entitled to a
hearing before an independent officer, who provides a report to the DG-
Competition. Once the DG-Competition makes its recommendation,
the Commission may dismiss the complaint or issue a decision holding
the target liable and imposing penalties. The Commission’s final action
is subject to review in the Court of First Instance and the European
Court of Justice. Lacking formal “litigant” status in Commission pro-
ceedings, a complainant nonetheless has significant procedural rights.
Important here, a complainant may submit relevant information to the
DG-Competition and seek judicial review of the Commission’s disposi-
tion. Pp. 254–255.
2. Section 1782(a)’s language, confirmed by its context, warrants the
conclusion that the provision authorizes, but does not require, a federal
district court to provide assistance to a complainant in a Commission
proceeding that leads to a dispositive ruling. The Court therefore
rejects the categorical limitations Intel would place on the statute’s
reach. Pp. 255–263.
(a) A complainant before the Commission, such as AMD, qualifies
as an “interested person” within § 1782(a)’s compass. The Court rejects
Intel’s contention that “interested person[s]” does not include complain-
ants, but encompasses only litigants, foreign sovereigns, and a sover-
eign’s designated agents. To support its reading, Intel highlights
§ 1782’s caption, “[a]ssistance to foreign and international tribunals and
to litigants before such tribunals.” (Emphasis added.) A statute’s
caption, however, cannot undo or limit its text’s plain meaning. Train-
men v. Baltimore & Ohio R. Co., 331 U. S. 519, 529. Section 1782(a)
plainly reaches beyond the universe of persons designated “litigant.”
With significant participation rights in Commission proceedings, the
complainant qualifies as an “interested person” within any fair construc-
tion of that term. Pp. 256–257.
(b) The assistance AMD seeks meets § 1782(a)’s specification “for
use in a foreign or international tribunal.” The Commission qualifies

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as a “tribunal” when it acts as a first-instance decisionmaker. Both the
Court of First Instance and the European Court of Justice are tribunals,
but not proof-takers. Their review is limited to the record before the
Commission. Hence, AMD could “use” evidence in those reviewing
courts only by submitting it to the Commission in the current, inves-
tigative stage. In adopting the Rules Commission’s recommended re-
placement of the term “any judicial proceeding” with the words
“a proceeding in a foreign or international tribunal,” Congress opened
the way for judicial assistance in foreign administrative and quasi-
judicial proceedings. This Court has no warrant to exclude the Com-
mission, to the extent that it acts as a first-instance decisionmaker, from
§ 1782(a)’s ambit. Pp. 257–258.
(c) The “proceeding” for which discovery is sought under § 1782(a)
must be within reasonable contemplation, but need not be “pending”
or “imminent.” The Court rejects Intel’s argument that the Commis-
sion investigation launched by AMD’s complaint does not qualify for
§ 1782(a) assistance. Since the 1964 revision, which deleted the prior
law’s reference to “pending,” Congress has not limited judicial assist-
ance under § 1782(a) to “pending” adjudicative proceedings. This Court
presumes that Congress intends its statutory amendments to have real
and substantial effect. Stone v. INS, 514 U. S. 386, 397. The 1964 revi-
sion’s legislative history corroborates Congress’ recognition that judicial
assistance would be available for both foreign proceedings and investi-
gations. A 1996 amendment clarifies that § 1782(a) covers “criminal in-
vestigations conducted before formal accusation.” Nothing in that
amendment, however, suggests that Congress meant to rein in, rather
than to confirm, by way of example, the range of discovery § 1782(a)
authorizes. Pp. 258–259.
(d) Section 1782(a) does not impose a foreign-discoverability re-
quirement. Although § 1782(a) expressly shields from discovery mat-
ters protected by legally applicable privileges, nothing in § 1782(a)’s text
limits a district court’s production-order authority to materials discover-
able in the foreign jurisdiction if located there. Nor does the legislative
history suggest that Congress intended to impose a blanket foreign-
discoverability rule on § 1782(a) assistance. The Court rejects two pol-
icy concerns raised by Intel in support of a foreign-discoverability limi-
tation on § 1782(a) aid—avoiding offense to foreign governments, and
maintaining parity between litigants. While comity and parity con-
cerns may be legitimate touchstones for a district court’s exercise of
discretion in particular cases, they do not warrant construction of
§ 1782(a)’s text to include a generally applicable foreign-discoverability
rule. Moreover, the Court questions whether foreign governments
would be offended by a domestic prescription permitting, but not requir-

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244 INTEL CORP. v. ADVANCED MICRO DEVICES, INC.
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ing, judicial assistance. A foreign nation may limit discovery within its
domain for reasons peculiar to its own legal practices, culture, or tradi-
tions; such reasons do not necessarily signal objection to aid from United
States federal courts. A foreign tribunal’s reluctance to order produc-
tion of materials present in the United States similarly may signal no
resistance to the receipt of evidence gathered pursuant to § 1782(a).
When the foreign tribunal would readily accept relevant information
discovered in the United States, application of a categorical foreign-
discoverability rule would be senseless. Concerns about parity among
adversaries in litigation likewise provide no sound basis for a cross-the-
board foreign-discoverability rule. When information is sought by an
“interested person,” a district court can condition relief upon reciprocal
information exchange. Moreover, the foreign tribunal can place condi-
tions on its acceptance of information, thereby maintaining whatever
measure of parity it deems appropriate. The Court also rejects Intel’s
suggestion that a § 1782(a) applicant must show that United States law
would allow discovery in domestic litigation analogous to the foreign
proceeding. Section 1782 is a provision for assistance to tribunals
abroad. It does not direct United States courts to engage in compara-
tive analysis to determine whether analogous proceedings exist here.
Comparisons of that order can be fraught with danger. For example,
the United States has no close analogue to the Commission regime,
under which AMD lacks party status and can participate only as a com-
plainant. Pp. 259–263.
3. Whether § 1782(a) assistance is appropriate in this case is yet unre-
solved. To guide the District Court on remand, the Court notes factors
relevant to that question. First, when the person from whom discovery
is sought is a participant in the foreign proceeding, as Intel is here, 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. A foreign tribunal has jurisdiction over those appearing before
it, and can itself order them to produce evidence. In contrast, nonpar-
ticipants in foreign proceedings may be outside the foreign tribunal’s
jurisdictional reach; thus, their evidence, available in the United States,
may be unobtainable absent § 1782(a) aid. Second, a court presented
with a § 1782(a) request may consider the nature of the foreign tribunal,
the character of proceedings underway abroad, and the receptivity of
the foreign government, court, or agency to federal-court judicial assist-
ance. Further, the grounds Intel urged for categorical limitations on
§ 1782(a)’s scope may be relevant in determining whether a discovery
order should be granted in a particular case. Specifically, a district
court could consider whether the § 1782(a) request conceals an attempt
to circumvent foreign proof-gathering limits or other policies of a for-

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eign country or the United States. Also, unduly intrusive or burden-
some requests may be rejected or trimmed. The Court declines, at this
juncture, Intel’s suggestion that it exercise its supervisory authority to
adopt rules barring § 1782(a) discovery here. Any such endeavor
should await further experience with § 1782(a) applications in the lower
courts. Several facets of this case remain largely unexplored. While
Intel and its amici are concerned that granting AMD’s application in
any part may yield disclosure of confidential information, encourage
“fishing expeditions,” and undermine the Commission’s program offer-
ing prosecutorial leniency for admissions of wrongdoing, no one has sug-
gested that AMD’s complaint to the Commission is pretextual. Nor has
it been shown that § 1782(a)’s preservation of legally applicable privi-
leges and the controls on discovery available under Federal Rule of Civil
Procedure 26(b)(2) and (c) would be ineffective to prevent discovery
of Intel’s confidential information. The Court leaves it to the courts
below, applying closer scrutiny, to ensure an airing adequate to deter-
mine what, if any, assistance is appropriate. Pp. 264–266.
292 F. 3d 664, affirmed.
Ginsburg, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, Kennedy, Souter, and Thomas, JJ., joined. Scalia,
J., filed an opinion concurring in the judgment, post, p. 267. Breyer, J.,
filed a dissenting opinion, post, p. 267. O’Connor, J., took no part in the
consideration or decision of the case.
Seth P. Waxman argued the cause for petitioner. With
him on the briefs were Jonathan E. Nuechterlein, Joseph
Kattan, and James A. Murray. Carter G. Phillips argued
the cause and filed a brief as amicus curiae for the Commis-
sion of the European Communities in support of petitioner
under this Court’s Rule 12.6. With him on the brief were
Virginia A. Seitz, Richard Weiner, Gene C. Schaerr, and
Marinn F. Carlson.
Patrick Lynch argued the cause for respondent. With
him on the brief was Jonathan D. Hacker.
Jeffrey P. Minear argued the cause for the United States
as amicus curiae urging affirmance. With him on the brief
were Acting Solicitor General Clement, Assistant Attorney
General Keisler, Deputy Solicitor General Dreeben, Deputy

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246 INTEL CORP. v. ADVANCED MICRO DEVICES, INC.
Opinion of the Court
Assistant Attorney General Katsas, Michael Jay Singer,
and Sushma Soni.*
Justice Ginsburg delivered the opinion of the Court.
This case concerns the authority of federal district courts
to assist in the production of evidence for use in a foreign or
international tribunal. In the matter before us, respondent
Advanced Micro Devices, Inc. (AMD), filed an antitrust com-
plaint against petitioner Intel Corporation (Intel) with the
Directorate-General for Competition (DG-Competition) of
the Commission of the European Communities (European
Commission or Commission). In pursuit of that complaint,
AMD applied to the United States District Court for the
Northern District of California, invoking 28 U. S. C.
§ 1782(a), for an order requiring Intel to produce potentially
relevant documents. Section 1782(a) provides that a federal
district court “may order” a person “resid[ing]” or “found”
in the district to give testimony or produce documents “for
use in a proceeding in a foreign or international tribunal . . .
upon the application of any interested person.”
Concluding that § 1782(a) did not authorize the requested
discovery, the District Court denied AMD’s application.
The Court of Appeals for the Ninth Circuit reversed that
determination and remanded the case, instructing the Dis-
trict Court to rule on the merits of AMD’s application. In
accord with the Court of Appeals, we hold that the District
Court had authority under § 1782(a) to entertain AMD’s dis-
covery request. The statute, we rule, does not categorically
bar the assistance AMD seeks: (1) A complainant before the
European Commission, such as AMD, qualifies as an “inter-
ested person” within § 1782(a)’s compass; (2) the Commis-
sion is a § 1782(a) “tribunal” when it acts as a first-instance
*Briefs of amici curiae urging reversal were filed for the Chamber of
Commerce of the United States by Roy T. Englert, Jr., Max Huffman,
and Robin S. Conrad; and for the Product Liability Advisory Council, Inc.,
by Kenneth S. Geller and Miriam R. Nemetz.

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decisionmaker; (3) the “proceeding” for which discovery is
sought under § 1782(a) must be in reasonable contemplation,
but need not be “pending” or “imminent”; and (4) § 1782(a)
contains no threshold requirement that evidence sought from
a federal district court would be discoverable under the law
governing the foreign proceeding. We caution, however,
that § 1782(a) authorizes, but does not require, a federal dis-
trict court to provide judicial assistance to foreign or inter-
national tribunals or to “interested person[s]” in proceedings
abroad. Whether such assistance is appropriate in this case
is a question yet unresolved. To guide the District Court
on remand, we suggest considerations relevant to the dispo-
sition of that question.
I
A
Section 1782 is the product of congressional efforts, over
the span of nearly 150 years, to provide federal-court assist-
ance in gathering evidence for use in foreign tribunals.
Congress first provided for federal-court aid to foreign tribu-
nals in 1855; requests for aid took the form of letters roga-
tory forwarded through diplomatic channels. See Act of
Mar. 2, 1855, ch. 140, § 2, 10 Stat. 630 (circuit court may ap-
point “a United States commissioner designated . . . to make
the examination of witnesses” on receipt of a letter rogatory
from a foreign court); Act of Mar. 3, 1863, ch. 95, § 1, 12 Stat.
769 (authorizing district courts to respond to letters rogatory
by compelling witnesses here to provide testimony for use
abroad in “suit[s] for the recovery of money or property”).1
In 1948, Congress substantially broadened the scope of as-
1 “[A] letter rogatory is the request by a domestic court to a foreign
court to take evidence from a certain witness.” Jones, International Judi-
cial Assistance: Procedural Chaos and a Program for Reform, 62 Yale L. J.
515, 519 (1953). See Smit, International Litigation under the United
States Code, 65 Colum. L. Rev. 1015, 1027 (1965) (hereinafter Smit, Inter-
national Litigation) (noting foreign courts’ use of letters rogatory to re-
quest evidence-gathering aid from United States courts).

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sistance federal courts could provide for foreign proceedings.
That legislation, codified as § 1782, eliminated the prior re-
quirement that the government of a foreign country be a
party or have an interest in the proceeding. The measure
allowed district courts to designate persons to preside at
depositions “to be used in any civil action pending in any
court in a foreign country with which the United States is
at peace.” Act of June 25, 1948, ch. 646, § 1782, 62 Stat. 949
(emphasis added). The next year, Congress deleted “civil
action” from § 1782’s text and inserted “judicial proceeding.”
Act of May 24, 1949, ch. 139, § 93, 63 Stat. 103. See gen-
erally Jones, International Judicial Assistance: Procedural
Chaos and a Program for Reform, 62 Yale L. J. 515 (1953).
In 1958, prompted by the growth of international com-
merce, Congress created a Commission on International
Rules of Judicial Procedure (Rules Commission) to “investi-
gate and study existing practices of judicial assistance and
cooperation between the United States and foreign countries
with a view to achieving improvements.” Act of Sept. 2,
Pub. L. 85–906, § 2, 72 Stat. 1743; S. Rep. No. 2392, 85th
Cong., 2d Sess., 3 (1958); Smit, International Litigation
1015–1016. Six years later, in 1964, Congress unanimously
adopted legislation recommended by the Rules Commission; 2
the legislation included a complete revision of § 1782. See
Act of Oct. 3, Pub. L. 88–619, § 9, 78 Stat. 997; Smit, Interna-
tional Litigation 1026–1035.
As recast in 1964, § 1782 provided for assistance in obtain-
ing documentary and other tangible evidence as well as testi-
mony. Notably, Congress deleted the words “in any judicial
proceeding pending in any court in a foreign country,” and
replaced them with the phrase “in a proceeding in a foreign
2 The Rules Commission also drafted amendments to the Federal Rules
of Civil and Criminal Procedure and a Uniform Interstate and Interna-
tional Procedure Act, recommended for adoption by individual States.
See Fourth Annual Report of the Commission on International Rules of
Judicial Procedure, H. R. Doc. No. 88, 88th Cong., 1st Sess., 2 (1963).

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or international tribunal.” Brief for United States as Ami-
cus Curiae 6, 4a–5a (emphasis added). While the accompa-
nying Senate Report does not account discretely for the de-
letion of the word “pending,” 3 it explains that Congress
introduced the word “tribunal” to ensure that “assistance is
not confined to proceedings before conventional courts,” but
extends also to “administrative and quasi-judicial proceed-
ings.” S. Rep. No. 1580, 88th Cong., 2d Sess., 7 (1964); see
H. R. Rep. No. 1052, 88th Cong., 1st Sess., 9 (1963) (same).
Congress further amended § 1782(a) in 1996 to add, after the
reference to “foreign or international tribunal,” the words
“including criminal investigations conducted before formal
accusation.” National Defense Authorization Act for Fiscal
Year 1996, Pub. L. 104–106, § 1342(b), 110 Stat. 486. Section
1782(a)’s current text reads:
“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 for-
mal accusation. The order may be made pursuant to a
letter rogatory issued, or request made, by a foreign or
international tribunal or upon the application of any in-
terested person . . . . The order may prescribe the prac-
tice and procedure, which may be in whole or part the
practice and procedure of the foreign country or the in-
ternational tribunal, for taking the testimony or state-
ment or producing the document or other thing . . . [or
may be] the Federal Rules of Civil Procedure.
“A person may not be compelled to give his testimony
or statement or to produce a document or other thing in
violation of any legally applicable privilege.”
3 See Smit, International Litigation 1026–1027, n. 72 (commenting that
Congress eliminated the word “pending” in order “to facilitate the gather-
ing of evidence prior to the institution of litigation abroad”).

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B
AMD and Intel are “worldwide competitors in the micro-
processor industry.” 292 F. 3d 664, 665 (CA9 2002). In Oc-
tober 2000, AMD filed an antitrust complaint with the DG-
Competition of the European Commission. Ibid.; App. 41.
“The European Commission is the executive and administra-
tive organ of the European Communities.” Brief for Com-
mission of European Communities as Amicus Curiae 1
(hereinafter European Commission Amicus Curiae). The
Commission exercises responsibility over the wide range of
subject areas covered by the European Union treaty; those
areas include the treaty provisions, and regulations thereun-
der, governing competition. See ibid.; Consolidated Ver-
sions of Treaty on European Union and Treaty Establishing
European Community, Arts. 81 and 82, 2002 O. J. (C 325) 33,
64–65, 67 (hereinafter EC Treaty). The DG-Competition,
operating under the Commission’s aegis, is the European
Union’s primary antitrust law enforcer. European Commis-
sion Amicus Curiae 2. Within the DG-Competition’s do-
main are anticompetitive agreements (Art. 81) and abuse
of dominant market position (Art. 82). Ibid.; EC Treaty
64–65.
AMD’s complaint alleged that Intel, in violation of Euro-
pean competition law, had abused its dominant position in
the European market through loyalty rebates, exclusive pur-
chasing agreements with manufacturers and retailers, price
discrimination, and standard-setting cartels. App. 40–43;
Brief for Petitioner 13. AMD recommended that the DG-
Competition seek discovery of documents Intel had produced
in a private antitrust suit, titled Intergraph Corp. v. Intel
Corp., brought in a Federal District Court in Alabama. 3
F. Supp. 2d 1255 (ND Ala. 1998), vacated, 195 F. 3d 1346 (CA
Fed. 1999), remanded, 88 F. Supp. 2d 1288 (ND Ala. 2000),
aff ’d, 253 F. 3d 695 (CA Fed. 2001); App. 111; App. to Pet. for

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Cert. 13a–14a.4 After the DG-Competition declined to seek
judicial assistance in the United States, AMD, pursuant to
§ 1782(a), petitioned the District Court for the Northern Dis-
trict of California 5 for an order directing Intel to produce
documents discovered in the Intergraph litigation and on file
in the federal court in Alabama. App. to Pet. for Cert. 13a–
14a. AMD asserted that it sought the materials in con-
nection with the complaint it had filed with the European
Commission. Ibid.6
The District Court denied the application as “[un]sup-
ported by applicable authority.” Id., at 15a. Reversing
that determination, the Court of Appeals for the Ninth Cir-
cuit remanded the case for disposition on the merits. 292
F. 3d, at 669. The Court of Appeals noted two points sig-
nificant to its decision: § 1782(a) includes matters before
“ ‘bodies of a quasi-judicial or administrative nature,’ ” id., at
667 (quoting In re Letters Rogatory from Tokyo Dist., 539
F. 2d 1216, 1218–1219 (CA9 1976)); and, since 1964, the stat-
ute’s text has contained “[no] requirement that the proceed-
ing be ‘pending,’ ” 292 F. 3d, at 667 (quoting United States v.
Sealed 1, Letter of Request for Legal Assistance from the
4 The Alabama federal court granted summary judgment in Intel’s favor
in the Intergraph litigation, and the Court of Appeals for the Federal
Circuit affirmed. See 253 F. 3d, at 699. A protective order, imposed by
the Alabama federal court, governs the confidentiality of all discovery in
that case. App. 72–73.
5 Both Intel and AMD are headquartered in the Northern District of
California. Id., at 113.
6 AMD’s complaint to the Commission alleges, inter alia, “that Intel has
monopolized the worldwide market for Windows-capable i. e. x86, micro-
processors.” Id., at 55–56. The documents from the Intergraph litiga-
tion relate to: “(a) the market within which Intel x86 microprocessors com-
pete; (b) the power that Intel enjoys within that market; (c) actions taken
by Intel to preserve and enhance its position in the market; and (d) the
impact of the actions taken by Intel to preserve and enhance its market
position.” App. 55.

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Deputy Prosecutor Gen. of Russian Federation, 235 F. 3d
1200, 1204 (CA9 2000)); see supra, at 248–249. A proceeding
judicial in character, the Ninth Circuit further observed, was
a likely sequel to the European Commission’s investigation:
“[The European Commission is] a body authorized to enforce
the EC Treaty with written, binding decisions, enforceable
through fines and penalties. [The Commission’s] decisions
are appealable to the Court of First Instance and then to
the [European] Court of Justice. Thus, the proceeding for
which discovery is sought is, at minimum, one leading to
quasi-judicial proceedings.” 292 F. 3d, at 667; see infra, at
254–255 (presenting synopsis of Commission proceedings and
judicial review of Commission decisions).
The Court of Appeals rejected Intel’s argument that
§ 1782(a) called for a threshold showing that the documents
AMD sought in the California federal court would have been
discoverable by AMD in the European Commission investi-
gation had those documents been located within the Union.
292 F. 3d, at 668. Acknowledging that other Courts of
Appeals had construed § 1782(a) to include a “foreign-
discoverability” rule, the Ninth Circuit found “nothing in the
plain language or legislative history of Section 1782, includ-
ing its 1964 and 1996 amendments, to require a threshold
showing [by] the party seeking discovery that what is sought
be discoverable in the foreign proceeding,” id., at 669. A
foreign-discoverability threshold, the Court of Appeals
added, would disserve § 1782(a)’s twin aims of “providing ef-
ficient assistance to participants in international litigation
and encouraging foreign countries by example to provide
similar assistance to our courts.” Ibid.
On remand, a Magistrate Judge found AMD’s application
“overbroad,” and recommended an order directing AMD to
submit a more specific discovery request confined to docu-
ments directly relevant to the European Commission investi-
gation. App. to Brief in Opposition 1a–6a; Brief for Pe-
titioner 15, n. 9. The District Court has stayed further

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proceedings pending disposition of the questions presented
by Intel’s petition for certiorari. Ibid.; see Order Vacating
Hearing Date, No. C 01–7033 MISC JW (ND Cal., Dec. 1,
2003) (stating “Intel may renotice its motion for de novo re-
view of the Magistrate Judge’s decision after the Supreme
Court issues its ruling”).
We granted certiorari, 540 U. S. 1003 (2003), in view of
the division among the Circuits on the question whether
§ 1782(a) contains a foreign-discoverability requirement. 7
We now hold that § 1782(a) does not impose such a require-
ment. We also granted review on two other questions.
First, does § 1782(a) make discovery available to complain-
ants, such as AMD, who do not have the status of private
“litigants” and are not sovereign agents? See Pet. for Cert.
(i). Second, must a “proceeding” before a foreign “tribunal”
be “pending” or at least “imminent” for an applicant to in-
voke § 1782(a) successfully? Compare In re Letter of Re-
quest from Crown Prosecution Serv. of United Kingdom,
870 F. 2d 686, 691 (CADC 1989) (proceeding must be “within
reasonable contemplation”), with In re Ishihari Chemical
Co., 251 F. 3d 120, 125 (CA2 2001) (proceeding must be “im-
minent—very likely to occur and very soon to occur”); In re
International Judicial Assistance (Letter Rogatory) for
Federative Republic of Brazil, 936 F. 2d 702, 706 (CA2 1991)
7 The First and Eleventh Circuits have construed § 1782(a) to contain a
foreign-discoverability requirement. See In re Application of Asta Med-
ica, S. A., 981 F. 2d 1, 7 (CA1 1992); In re Request for Assistance from
Ministry of Legal Affairs of Trinidad and Tobago, 848 F. 2d 1151, 1156
(CA11 1988). The Fourth and Fifth Circuits have held that no such re-
quirement exists if the § 1782(a) applicant is a foreign sovereign. See
In re Letter of Request from Amtsgericht Ingolstadt, F. R. G., 82 F. 3d
590, 592 (CA4 1996); In re Letter Rogatory from First Court of First
Instance in Civil Matters, Caracas, Venezuela, 42 F. 3d 308, 310–311 (CA5
1995). In alignment with the Ninth Circuit, the Second and Third Cir-
cuits have rejected a foreign-discoverability requirement. See In re Ap-
plication of Gianoli Aldunate, 3 F. 3d 54, 59–60 (CA2 1993); In re Bayer
AG, 146 F. 3d 188, 193–194 (CA3 1998).

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(same). Answering “yes” to the first question and “no” to
the second, we affirm the Ninth Circuit’s judgment.
II
To place this case in context, we sketch briefly how the
European Commission, acting through the DG-Competition,
enforces European competition laws and regulations. The
DG-Competition’s “overriding responsibility” is to conduct
investigations into alleged violations of the European
Union’s competition prescriptions. See European Commis-
sion Amicus Curiae 6. On receipt of a complaint or sua
sponte, the DG-Competition conducts a preliminary investi-
gation. Ibid. In that investigation, the DG-Competition
“may take into account information provided by a complain-
ant, and it may seek information directly from the target of
the complaint.” Ibid. “Ultimately, DG Competition’s pre-
liminary investigation results in a formal written decision
whether to pursue the complaint. If [the DG-Competition]
declines to proceed, that decision is subject to judicial re-
view” by the Court of First Instance and, ultimately, by the
court of last resort for European Union matters, the Court
of Justice for the European Communities (European Court
of Justice). Id., at 7; App. 50; see, e. g., Case T–241/97, Stork
Amsterdam BV v. Commission, 2000 E. C. R. II–309, [2000]
5 C. M. L. R. 31 (Ct. 1st Instance 2000) (annulling Commis-
sion’s rejection of a complaint).8
If the DG-Competition decides to pursue the complaint, it
typically serves the target of the investigation with a formal
“statement of objections” and advises the target of its in-
tention to recommend a decision finding that the target has
violated European competition law. European Commission
8 The Court of First Instance, which is “attached to the [European]
Court of Justice,” was established “to improve the judicial protection of
individual interests, particularly in cases requiring the examination of
complex facts, whilst at the same time reducing the workload of the [Euro-
pean] Court of Justice.” C. Kerse, E. C. Antitrust Procedure 37 (3d ed.
1994).

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Amicus Curiae 7. The target is entitled to a hearing before
an independent officer, who provides a report to the DG-
Competition. Ibid.; App. 18–27. Once the DG-Competition
has made its recommendation, the European Commission
may “dismis[s] the complaint, or issu[e] a decision finding in-
fringement and imposing penalties.” European Commission
Amicus Curiae 7. The Commission’s final action dismissing
the complaint or holding the target liable is subject to review
in the Court of First Instance and the European Court of
Justice. Ibid.; App. 52–53, 89–90.
Although lacking formal “party” or “litigant” status in
Commission proceedings, the complainant has significant
procedural rights. Most prominently, the complainant may
submit to the DG-Competition information in support of its
allegations, and may seek judicial review of the Commission’s
disposition of a complaint. See European Commission Ami-
cus Curiae 7–8, and n. 5; Stork Amsterdam, 2000 E. C. R.
II, at 328–329, ¶¶ 51–53.
III
As “in all statutory construction cases, we begin [our ex-
amination of § 1782] with the language of the statute.”
Barnhart v. Sigmon Coal Co., 534 U. S. 438, 450 (2002). The
language of § 1782(a), confirmed by its context, our examina-
tion satisfies us, warrants this conclusion: The statute au-
thorizes, but does not require, a federal district court to pro-
vide assistance to a complainant in a European Commission
proceeding that leads to a dispositive ruling, i. e., a final ad-
ministrative action both responsive to the complaint and re-
viewable in court.9 Accordingly, we reject the categorical
limitations Intel would place on the statute’s reach.
9 The dissent suggests that the Commission “more closely resembles a
prosecuting authority, say, the Department of Justice’s Antitrust Division,
than an administrative agency that adjudicates cases, say, the Federal
Trade Commission.” Post, at 270. That is a questionable suggestion in
view of the European Commission’s authority to determine liability and
impose penalties, dispositions that will remain final unless overturned by
the European courts. See supra this page.

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A
We turn first to Intel’s contention that the catalog of “in-
terested person[s]” authorized to apply for judicial assistance
under § 1782(a) includes only “litigants, foreign sovereigns,
and the designated agents of those sovereigns,” and excludes
AMD, a mere complainant before the Commission, accorded
only “limited rights.” Brief for Petitioner 10–11, 24, 26–27.
Highlighting § 1782’s caption, “[a]ssistance to foreign and in-
ternational tribunals and to litigants before such tribunals,”
Intel urges that the statutory phrase “any interested person”
should be read, correspondingly, to reach only “litigants.”
Id., at 24 (internal quotation marks omitted, emphasis in
original).
The caption of a statute, this Court has cautioned, “cannot
undo or limit that which the [statute’s] text makes plain.”
Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519, 529
(1947). The text of § 1782(a), “upon the application of any
interested person,” plainly reaches beyond the universe of
persons designated “litigant.” No doubt litigants are in-
cluded among, and may be the most common example of,
the “interested person[s]” who may invoke § 1782; we read
§ 1782’s caption to convey no more. See, e. g., Whitman v.
American Trucking Assns., Inc., 531 U. S. 457, 482–483
(2001) (rejecting narrow reading of 42 U. S. C. § 7511(a) based
on caption in light of “specifically” broader coverage of pro-
vision’s text).
The complainant who triggers a European Commission in-
vestigation has a significant role in the process. As earlier
observed, see supra, at 255, in addition to prompting an in-
vestigation, the complainant has the right to submit infor-
mation for the DG-Competition’s consideration, and may
proceed to court if the Commission discontinues the inves-
tigation or dismisses the complaint. App. 52–53. Given
these participation rights, a complainant “possess[es] a rea-
sonable interest in obtaining [judicial] assistance,” and
therefore qualifies as an “interested person” within any fair
construction of that term. See Smit, International Litiga-

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tion 1027 (“any interested person” is “intended to include not
only litigants before foreign or international tribunals, but
also foreign and international officials as well as any other
person whether he be designated by foreign law or interna-
tional convention or merely possess a reasonable interest in
obtaining the assistance”).10
B
We next consider whether the assistance in obtaining doc-
uments here sought by an “interested person” meets the
specification “for use in a foreign or international tribunal.”
Beyond question the reviewing authorities, both the Court
of First Instance and the European Court of Justice, qualify
as tribunals. But those courts are not proof-taking in-
stances. Their review is limited to the record before the
Commission. See Tr. of Oral Arg. 17. Hence, AMD could
“use” evidence in the reviewing courts only by submitting it
to the Commission in the current, investigative stage.
Moreover, when Congress established the Commission on
International Rules of Judicial Procedure in 1958, see supra,
at 248, it instructed the Rules Commission to recommend
10 The term “interested person,” Intel notes, also appears in 28 U. S. C.
§ 1696(a), a provision enacted concurrently with the 1964 revision of § 1782.
Brief for Petitioner 27. Section 1696(a) authorizes federal district courts
to “order service . . . of any document issued in connection with a [foreign]
proceeding” pursuant to a request made by the foreign tribunal “or upon
application of any interested person.” Intel reasons that “[t]he class of
private parties qualifying as ‘interested persons’ for [service] purposes
must of course be limited to litigants, because private parties . . . cannot
serve ‘process’ unless they have filed suit.” Brief for Petitioner 27 (em-
phasis in original). Section 1696(a), however, is not limited to service of
process; it allows service of “any document” issued in connection with a
foreign proceeding. As the Government points out by way of example:
“[I]f the European Commission’s procedures were revised to require a
complainant to serve its complaint on a target company, but the complain-
ant’s role in the Commission’s proceedings otherwise remained unchanged,
[§ ]1696 would authorize the district court to provide that ‘interested [per-
son]’ with assistance in serving that document.” Brief for United States
as Amicus Curiae 20, n. 11.

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procedural revisions “for the rendering of assistance to for-
eign courts and quasi-judicial agencies.” § 2, 72 Stat. 1743
(emphasis added). Section 1782 had previously referred to
“any judicial proceeding.” The Rules Commission’s draft,
which Congress adopted, replaced that term with “a proceed-
ing in a foreign or international tribunal.” See supra, at
248–249. Congress understood that change to “provid[e]
the possibility of U. S. judicial assistance in connection with
[administrative and quasi-judicial proceedings abroad].”
S. Rep. No. 1580, at 7–8; see Smit, International Litigation
1026–1027, and nn. 71, 73 (“[t]he term ‘tribunal’ . . . includes
investigating magistrates, administrative and arbitral tribu-
nals, and quasi-judicial agencies, as well as conventional civil,
commercial, criminal, and administrative courts”; in addition
to affording assistance in cases before the European Court
of Justice, § 1782, as revised in 1964, “permits the rendition
of proper aid in proceedings before the [European] Commis-
sion in which the Commission exercises quasi-judicial pow-
ers”). See also European Commission Amicus Curiae 9
(“[W]hen the Commission acts on DG Competition’s final rec-
ommendation . . . the investigative function blur[s] into deci-
sionmaking.”). We have no warrant to exclude the Euro-
pean Commission, to the extent that it acts as a first-instance
decisionmaker, from § 1782(a)’s ambit. See 292 F. 3d, at 667;
supra, at 255, n. 9.
C
Intel also urges that AMD’s complaint has not progressed
beyond the investigative stage; therefore, no adjudicative ac-
tion is currently or even imminently on the Commission’s
agenda. Brief for Petitioner 27–29.
Section 1782(a) does not limit the provision of judicial as-
sistance to “pending” adjudicative proceedings. In 1964,
when Congress eliminated the requirement that a proceed-
ing be “judicial,” Congress also deleted the requirement that
a proceeding be “pending.” See supra, at 248–249. “When

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Congress acts to amend a statute, we presume it intends its
amendment to have real and substantial effect.” Stone v.
INS, 514 U. S. 386, 397 (1995). The legislative history of the
1964 revision is in sync; it reflects Congress’ recognition that
judicial assistance would be available “whether the foreign
or international proceeding or investigation is of a criminal,
civil, administrative, or other nature.” S. Rep. No. 1580, at
9 (emphasis added).
In 1996, Congress amended § 1782(a) to clarify that the
statute covers “criminal investigations conducted before for-
mal accusation.” See § 1342(b), 110 Stat. 486; supra, at 249.
Nothing suggests that this amendment was an endeavor to
rein in, rather than to confirm, by way of example, the broad
range of discovery authorized in 1964. See S. Rep. No. 1580,
at 7 (“[T]he [district] court[s] have discretion to grant assist-
ance when proceedings are pending before investigating
magistrates in foreign countries.”).
In short, we reject the view, expressed in In re Ishihara
Chemical Co., that § 1782 comes into play only when adjudi-
cative proceedings are “pending” or “imminent.” See 251
F. 3d, at 125 (proceeding must be “imminent—very likely
to occur and very soon to occur” (internal quotation marks
omitted)). Instead, we hold that § 1782(a) requires only that
a dispositive ruling by the Commission, reviewable by the
European courts, be within reasonable contemplation. See
Crown Prosecution Serv. of United Kingdom, 870 F. 2d, at
691; In re Request for Assistance from Ministry of Legal
Affairs of Trinidad and Tobago, 848 F. 2d 1151, 1155, and
n. 9 (CA11 1988); Smit, International Litigation 1026 (“It is
not necessary . . . for the [adjudicative] proceeding to be
pending at the time the evidence is sought, but only that the
evidence is eventually to be used in such a proceeding.”).
D
We take up next the foreign-discoverability rule on which
lower courts have divided: Does § 1782(a) categorically bar a

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district court from ordering production of documents when
the foreign tribunal or the “interested person” would not be
able to obtain the documents if they were located in the for-
eign jurisdiction? See supra, at 253–254, and n. 7.
We note at the outset, and count it significant, that
§ 1782(a) expressly shields privileged material: “A person
may not be compelled to give his testimony or statement or
to produce a document or other thing in violation of any le-
gally applicable privilege.” See S. Rep. No. 1580, at 9 (“[N]o
person shall be required under the provisions of [§ 1782] to
produce any evidence in violation of an applicable privi-
lege.”). Beyond shielding material safeguarded by an appli-
cable privilege, however, nothing in the text of § 1782 limits
a district court’s production-order authority to materials that
could be discovered in the foreign jurisdiction if the materi-
als were located there. “If Congress had intended to impose
such a sweeping restriction on the district court’s discretion,
at a time when it was enacting liberalizing amendments to
the statute, it would have included statutory language to
that effect.” In re Application of Gianoli Aldunate, 3 F. 3d
54, 59 (CA2 1993); accord Four Pillars Enterprises Co. v.
Avery Dennison Corp., 308 F. 3d 1075, 1080 (CA9 2002); 292
F. 3d, at 669 (case below); In re Bayer AG, 146 F. 3d 188,
193–194 (CA3 1998).11
Nor does § 1782(a)’s legislative history suggest that Con-
gress intended to impose a blanket foreign-discoverability
rule on the provision of assistance under § 1782(a). The Sen-
ate Report observes in this regard that § 1782(a) “leaves the
issuance of an appropriate order to the discretion of the court
11 Section 1782(a) instructs that a district court’s discovery 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 . . . [or may be] the Federal Rules of Civil Procedure.” This mode-
of-proof-taking instruction imposes no substantive limitation on the dis-
covery to be had.

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which, in proper cases, may refuse to issue an order or may
impose conditions it deems desirable.” S. Rep. No. 1580,
at 7.
Intel raises two policy concerns in support of a foreign-
discoverability limitation on § 1782(a) aid—avoiding offense
to foreign governments, and maintaining parity between liti-
gants. Brief for Petitioner 23–24; Reply Brief 5, 13–14; see
In re Application of Asta Medica, S. A., 981 F. 2d 1, 6 (CA1
1992) (“Congress did not seek to place itself on a collision
course with foreign tribunals and legislatures, which have
carefully chosen the procedures and laws best suited to their
concepts of litigation.”). While comity and parity concerns
may be important as touchstones for a district court’s exer-
cise of discretion in particular cases, they do not permit our
insertion of a generally applicable foreign-discoverability
rule into the text of § 1782(a).
We question whether foreign governments would in fact
be offended by a domestic prescription permitting, but not
requiring, judicial assistance. A foreign nation may limit
discovery within its domain for reasons peculiar to its own
legal practices, culture, or traditions—reasons that do not
necessarily signal objection to aid from United States federal
courts. See Bayer, 146 F. 3d, at 194 (“[T]here is no reason to
assume that because a country has not adopted a particular
discovery procedure, it would take offense at its use.”); Smit,
Recent Developments in International Litigation, 35 S. Tex.
L. Rev. 215, 235–236 (1994) (hereinafter Smit, Recent Devel-
opments) (same).12 A foreign tribunal’s reluctance to order
12 Most civil-law systems lack procedures analogous to the pretrial dis-
covery regime operative under the Federal Rules of Civil Procedure. See
ALI, ALI/Unidroit Principles and Rules of Transnational Civil Procedure,
Proposed Final Draft, Rule 22, Comment R–22E, p. 118 (2004) (“Disclosure
and exchange of evidence under the civil-law systems are generally more
restricted, or nonexistent.”); Hazard, Discovery and the Role of the Judge
in Civil Law Jurisdictions, 73 Notre Dame L. Rev. 1017, 1018–1019 (1998)
(same). See also Smit, Recent Developments 235, n. 93 (“The drafters
[of § 1782] were quite aware of the circumstance that civil law systems

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production of materials present in the United States simi-
larly may signal no resistance to the receipt of evidence gath-
ered pursuant to § 1782(a). See South Carolina Ins. Co. v.
Assurantie Maatschappij “De Zeven Provincien” N. V.,
[1987] 1 App. Cas. 24 (House of Lords ruled that nondis-
coverability under English law did not stand in the way of a
litigant in English proceedings seeking assistance in the
United States under § 1782).13 When the foreign tribunal
would readily accept relevant information discovered in the
United States, application of a foreign-discoverability rule
would be senseless. The rule in that situation would serve
only to thwart § 1782(a)’s objective to assist foreign tribunals
in obtaining relevant information that the tribunals may find
useful but, for reasons having no bearing on international
comity, they cannot obtain under their own laws.
Concerns about maintaining parity among adversaries in
litigation likewise do not provide a sound basis for a cross-
the-board foreign-discoverability rule. When information is
sought by an “interested person,” a district court could con-
dition relief upon that person’s reciprocal exchange of infor-
mation. See Euromepa, S. A. v. R. Esmerian, Inc., 51 F. 3d
1095, 1102 (CA2 1995); Smit, Recent Developments 237.
Moreover, the foreign tribunal can place conditions on its
acceptance of the information to maintain whatever measure
of parity it concludes is appropriate. See Euromepa, 51
F. 3d, at 1101.14
generally do not have American type pretrial discovery, and do not compel
the production of documentary evidence.”).
13 See Smit, American Assistance to Litigation in Foreign and Interna-
tional Tribunals: Section 1782 of Title 28 of the U. S. C. Revisited, 25 Syra-
cuse J. Int’l L. & Comm. 1, 13, and n. 63 (1998) (hereinafter Smit, American
Assistance) (noting that “[a] similar decision was rendered by the Presi-
dent of the Amsterdam District Court”).
14 A civil-law court, furthermore, might attend to litigant-parity con-
cerns in its merits determination: “In civil law countries, documentary
evidence is generally submitted as an attachment to the pleadings or as
part of a report by an expert. . . . A civil law court generally rules upon
the question of whether particular documentary evidence may be relied

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We also reject Intel’s suggestion that a § 1782(a) applicant
must show that United States law would allow discovery
in domestic litigation analogous to the foreign proceeding.
Brief for Petitioner 19–20 (“[I]f AMD were pursuing this
matter in the United States, U. S. law would preclude it from
obtaining discovery of Intel’s documents.”). Section 1782 is
a provision for assistance to tribunals abroad. It does not
direct United States courts to engage in comparative analy-
sis to determine whether analogous proceedings exist here.
Comparisons of that order can be fraught with danger.15
For example, we have in the United States no close analogue
to the European Commission regime under which AMD is
not free to mount its own case in the Court of First Instance
or the European Court of Justice, but can participate only as
complainant, an “interested person,” in Commission-steered
proceedings. See L. Ritter, W. Braun, & F. Rawlinson, Eu-
ropean Competition Law: A Practitioner’s Guide 824–826
(2d ed. 2000) (describing a complaint as a potentially “more
certain (and cheaper) alternative to private enforcement
through the [European Union’s member states’] courts”).16
upon only in its decision on the merits.” Smit, Recent Developments 235–
236, n. 94.
15 Among its proposed rules, the dissent would exclude from § 1782(a)’s
reach discovery not available “under foreign law” and “under domestic
law in analogous circumstances.” Post, at 270. Because comparison of
systems is slippery business, the dissent’s rule is infinitely easier to state
than to apply. As the dissent’s examples tellingly reveal, see post, at 267–
268, a foreign proceeding may have no direct analogue in our legal system.
In light of the variety of foreign proceedings resistant to ready classifica-
tion in domestic terms, Congress left unbounded by categorical rules the
determination whether a matter is proceeding “in a foreign or interna-
tional tribunal.” While we reject the rules the dissent would inject into
the statute, see post, at 269–273, we do suggest guides for the exercise of
district-court discretion, see infra, at 264–266.
16 At oral argument, counsel for AMD observed: “In the United States,
we could have brought a private action in the district court for these very
same violations. In Europe, our only Europe-wide remedy was to go to
the [European Commission].” Tr. of Oral Arg. 33.

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IV
As earlier emphasized, see supra, at 260–261, a district
court is not required to grant a § 1782(a) discovery applica-
tion simply because it has the authority to do so. See
United Kingdom v. United States, 238 F. 3d 1312, 1319 (CA11
2001) (“a district court’s compliance with a § 1782 request is
not mandatory”). We note below factors that bear consider-
ation in ruling on a § 1782(a) request.
First, when the person from whom discovery is sought is
a participant in the foreign proceeding (as Intel is here), the
need for § 1782(a) aid generally is not as apparent as it ordi-
narily is when evidence is sought from a nonparticipant in
the matter arising abroad. A foreign tribunal has jurisdic-
tion over those appearing before it, and can itself order them
to produce evidence. App. to Reply Brief 4a (“When th[e]
person [who is to produce the evidence] is a party to the
foreign proceedings, the foreign or international tribunal can
exercise its own jurisdiction to order production of the evi-
dence.” (quoting declaration of H. Smit in In re: Application
of Ishihara Chemical Co., Ltd., For order to take discovery
of Shipley Company, L. L. C., Pursuant to 28 U. S. C. § 1782,
Misc. 99–232 (FB) (EDNY, May 18, 2000))). In contrast,
nonparticipants in the foreign proceeding may be outside the
foreign tribunal’s jurisdictional reach; hence, their evidence,
available in the United States, may be unobtainable absent
§ 1782(a) aid. See App. to Reply Brief 4a.
Second, as the 1964 Senate Report suggests, a court pre-
sented with a § 1782(a) request may take into account the
nature of the foreign tribunal, the character of the proceed-
ings underway abroad, and the receptivity of the foreign
government or the court or agency abroad to U. S. federal-
court judicial assistance. See S. Rep. No. 1580, at 7. Fur-
ther, the grounds Intel urged for categorical limitations on
§ 1782(a)’s scope may be relevant in determining whether a
discovery order should be granted in a particular case. See
Brief for United States as Amicus Curiae 23. Specifically,

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a district court could consider 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. See id., at 27. Also, unduly intrusive or
burdensome requests may be rejected or trimmed. See
Bayer, 146 F. 3d, at 196 (remanding for district-court consid-
eration of “appropriate measures, if needed, to protect the
confidentiality of materials”); In re Application of Esses, 101
F. 3d 873, 876 (CA2 1996) (affirming limited discovery that is
neither “burdensome [n]or duplicative”).
Intel maintains that, if we do not accept the categorical
limitations it proposes, then, at least, we should exercise our
supervisory authority to adopt rules barring § 1782(a) discov-
ery here. Brief for Petitioner 34–36; cf. Thomas v. Arn, 474
U. S. 140, 146–147 (1985) (this Court can establish rules of
“sound judicial practice” (internal quotation marks omitted)).
We decline, at this juncture, to adopt supervisory rules.
Any such endeavor at least should await further experience
with § 1782(a) applications in the lower courts.17 The Euro-
pean Commission has stated in amicus curiae briefs to this
Court that it does not need or want the District Court’s as-
sistance. See European Commission Amicus Curiae 11–16;
Brief for European Commission as Amicus Curiae in Sup-
17 The dissent sees a need for “categorical limits” to ward off “expensive,
time-consuming battles about discovery.” Post, at 268. That concern
seems more imaginary than real. There is no evidence whatsoever, in the
40 years since § 1782(a)’s adoption, see supra, at 248, of the costs, delays,
and forced settlements the dissent hypothesizes. See Smit, American As-
sistance 1, 19–20 (“The revised section 1782 . . . has been applied in scores
of cases. . . . All in all, Section 1782 has largely served the purposes for
which it was enacted. . . . [T]here appears to be no reason for seriously
considering, at this time, any statutory amendments.”).
The Commission, we note, is not obliged to respond to a discovery re-
quest of the kind AMD has made. The party targeted in the complaint
and in the § 1782(a) application would no doubt wield the laboring oar in
opposing discovery, as Intel did here. Not only was there no “need for
the Commission to respond,” post, at 271, the Commission in fact made no
submission at all in the instant matter before it reached this Court.

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266 INTEL CORP. v. ADVANCED MICRO DEVICES, INC.
Opinion of the Court
port of Pet. for Cert. 4–8. It is not altogether clear, how-
ever, whether the Commission, which may itself invoke
§ 1782(a) aid, means to say “never” or “hardly ever” to judi-
cial assistance from United States courts. Nor do we know
whether the European Commission’s views on § 1782(a)’s util-
ity are widely shared in the international community by enti-
ties with similarly blended adjudicative and prosecutorial
functions.
Several facets of this case remain largely unexplored.
Intel and its amici have expressed concerns that AMD’s ap-
plication, if granted in any part, may yield disclosure of con-
fidential information, encourage “fishing expeditions,” and
undermine the European Commission’s Leniency Program.
See Brief for Petitioner 37; European Commission Amicus
Curiae 11–16.18 Yet no one has suggested that AMD’s com-
plaint to the Commission is pretextual. Nor has it been
shown that § 1782(a)’s preservation of legally applicable priv-
ileges, see supra, at 260, and the controls on discovery avail-
able to the District Court, see, e. g., Fed. Rule Civ. Proc.
26(b)(2) and (c), would be ineffective to prevent discovery of
Intel’s business secrets and other confidential information.
On the merits, this case bears closer scrutiny than it has
received to date. Having held that § 1782(a) authorizes, but
does not require, discovery assistance, we leave it to the
courts below to ensure an airing adequate to determine
what, if any, assistance is appropriate.19
18 The European Commission’s “Leniency Program” allows “cartel par-
ticipants [to] confess their own wrongdoing” in return for prosecutorial
leniency. European Commission Amicus Curiae 14–15; Brief for Euro-
pean Commission as Amicus Curiae in Support of Pet. for Cert. 6.
19 The District Court might also consider the significance of the protec-
tive order entered by the District Court for the Northern District of Ala-
bama. See App. 73; supra, at 251, n. 4; cf. Four Pillars Enterprises Co.
v. Avery Dennison Corp., 308 F. 3d 1075, 1080 (CA9 2002) (affirming
district-court denial of discovery that “would frustrate the protective
order of [another] federal [district] court”).

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267 Cite as: 542 U. S. 241 (2004)
Breyer, J., dissenting
* * *
For the reasons stated, the judgment of the Court of Ap-
peals for the Ninth Circuit is
Affirmed.
Justice O’Connor took no part in the consideration or
decision of this case.
Justice Scalia, concurring in the judgment.
As today’s opinion shows, the Court’s disposition is re-
quired by the text of the statute. None of the limitations
urged by petitioner finds support in the categorical language
of 28 U. S. C. § 1782(a). That being so, it is not only (as I
think) improper but also quite unnecessary to seek repeated
support in the words of a Senate Committee Report—which,
as far as we know, not even the full committee, much less
the full Senate, much much less the House, and much much
much less the President who signed the bill, agreed with.
Since, moreover, I have not read the entire so-called legisla-
tive history, and have no need or desire to do so, so far as I
know the statements of the Senate Report may be contra-
dicted elsewhere.
Accordingly, because the statute—the only sure expres-
sion of the will of Congress—says what the Court says it
says, I join in the judgment.
Justice Breyer, dissenting.
The Court reads the scope of 28 U. S. C. § 1782 to extend
beyond what I believe Congress might reasonably have in-
tended. Some countries allow a private citizen to ask a
court to review a criminal prosecutor’s decision not to prose-
cute. On the majority’s reading, that foreign private citizen
could ask an American court to help the citizen obtain infor-
mation, even if the foreign prosecutor were indifferent or
unreceptive. See, e. g., Mann, Criminal Procedure, in Intro-
duction to the Law of Israel 267, 278 (A. Shapira & K.

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268 INTEL CORP. v. ADVANCED MICRO DEVICES, INC.
Breyer, J., dissenting
DeWitt-Arar eds. 1995). Many countries allow court review
of decisions made by any of a wide variety of nonprosecuto-
rial, nonadjudicative bodies. On the majority’s reading, a
British developer, hoping to persuade the British Housing
Corporation to grant it funding to build a low-income housing
development, could ask an American court to demand that
an American firm produce information designed to help the
developer obtain the British grant. Cf., e. g., Mayer, The
Housing Corporation: Multiple Lines of Accountability, in
Quangos, Accountability and Reform: The Politics of Quasi-
Government 111, 114 (M. Flinders & M. Smith eds. 1999).
This case itself suggests that an American firm, hoping to
obtain information from a competitor, might file an antitrust
complaint with the European antitrust authorities, thereby
opening up the possibility of broad American discovery—
contrary to the antitrust authorities’ desires.
One might ask why it is wrong to read the statute as per-
mitting the use of America’s court processes to obtain infor-
mation in such circumstances. One might also ask why
American courts should not deal case by case with any prob-
lems of the sort mentioned. The answer to both of these
questions is that discovery and discovery-related judicial
proceedings take time, they are expensive, and cost and
delay, or threats of cost and delay, can themselves force par-
ties to settle underlying disputes. See The Brookings Insti-
tution, Justice For All: Reducing Costs and Delay in Civil
Litigation, Report of a Task Force 6–7 (1989) (lawyers sur-
veyed estimated that 60% of litigation costs in a typical fed-
eral case are attributable to discovery and agreed that high
litigation costs are often attributable to abuse of the discov-
ery process); Federal Judicial Center, T. Willging, J. Shapard,
D. Stienstra, & D. Miletich, Discovery and Disclosure Prac-
tice, Problems, and Proposals for Change 1–2, 4, 8, 14–16 (Ta-
bles 3–5) (1997) (study outlining costs of discovery). To the
extent that expensive, time-consuming battles about discov-
ery proliferate, they deflect the attention of foreign authori-

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269 Cite as: 542 U. S. 241 (2004)
Breyer, J., dissenting
ties from other matters those authorities consider more im-
portant; they can lead to results contrary to those that
foreign authorities desire; and they can promote disharmony
among national and international authorities, rather than the
harmony that § 1782 seeks to achieve. They also use up do-
mestic judicial resources and crowd our dockets.
That is why I believe the statute, while granting district
courts broad authority to order discovery, nonetheless must
be read as subject to some categorical limits, at least at the
outer bounds—a matter that today’s decision makes even
more important. Those limits should rule out instances in
which it is virtually certain that discovery (if considered case
by case) would prove unjustified.
This case does not require us to find a comprehensive set
of limits. But it does suggest two categorical limitations,
which I would adopt. First, when a foreign entity possesses
few tribunal-like characteristics, so that the applicability of
the statute’s word “tribunal” is in serious doubt, then a court
should pay close attention to the foreign entity’s own view of
its “tribunal”-like or non-“tribunal”-like status. By paying
particular attention to the views of the very foreign nations
that Congress sought to help, courts would better achieve
Congress’ basic cooperative objectives in enacting the stat-
ute. See Act of Sept. 2, 1958, Pub. L. 85–906, § 2, 72 Stat.
1743 (creating Commission on International Rules of Judicial
Procedure to investigate and improve judicial “cooperation”
between the United States and other countries).
The concept of paying special attention to administrative
views is well established in American law. Cf. Chevron
U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467
U. S. 837, 843 (1984); Skidmore v. Swift & Co., 323 U. S. 134,
140 (1944). Like American administrators, foreign adminis-
trators are likely to understand better than American courts
their own job and, for example, how discovery rights might
affect their ability to carry out their responsibilities. I can
think of no reason why Congress would have intended a

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270 INTEL CORP. v. ADVANCED MICRO DEVICES, INC.
Breyer, J., dissenting
court to pay less attention to the foreign entity’s view of
the matter than courts ordinarily pay to a domestic agency’s
understanding of the workings of its own statute.
Second, a court should not permit discovery where both of
the following are true: (1) A private person seeking discov-
ery would not be entitled to that discovery under foreign
law, and (2) the discovery would not be available under do-
mestic law in analogous circumstances. The Federal Rules
of Civil Procedure, for example, make only limited provisions
for nonlitigants to obtain certain discovery. See Fed. Rule
Civ. Proc. 27. The limitations contained in the Rules help
to avoid discovery battles launched by firms simply seeking
information from competitors. Where there is benefit in
permitting such discovery, and the benefit outweighs the cost
of allowing it, one would expect either domestic law or for-
eign law to authorize it. If, notwithstanding the fact that it
would not be allowed under either domestic or foreign law,
there is some special need for the discovery in a particular
instance, one would expect to find foreign governmental or
intergovernmental authorities making the case for that need.
Where none of these circumstances is present, what benefit
could offset the obvious costs to the competitor and to our
courts? I cannot think of any.
Application of either of these limiting principles would re-
quire dismissal of this discovery proceeding. First, the
Commission of the European Communities’ (Commission) an-
titrust authority’s status as a “tribunal” is questionable. In
many respects, the Commission more closely resembles a
prosecuting authority, say, the Department of Justice’s Anti-
trust Division, than an administrative agency that adjudi-
cates cases, say, the Federal Trade Commission. To my
knowledge, those who decide whether to bring an antitrust
prosecution on the Commission’s behalf are not judges. See
App. 96; Wils, The Combination of the Investigative and
Prosecutorial Function and the Adjudicative Function in EC
Antitrust Enforcement: A Legal and Economic Analysis, 27

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271 Cite as: 542 U. S. 241 (2004)
Breyer, J., dissenting
World Competition Law and Economics Review 201, 207
(June 2004) (explaining, in an article written by a member
of the Commission’s Legal Service, that “in European Com-
mission proceedings there is no independent initial adjudica-
tor . . . and the Commissioners do not sit as judges hearing
directly both sides of the case”). They do not adjudicate
adversary proceedings on the basis of proofs and argument.
Ibid. Nor, as the majority appears to recognize, does the
later availability of a reviewing court matter where “review
is limited to the record before the Commission,” and “AMD
could ‘use’ evidence in the reviewing courts only by submit-
ting it to the Commission in the current, investigative
stage.” Ante, at 257. At a minimum, then, the question
whether the Commission is a “tribunal” is unclear. See
Wils, supra, at 207–209 (noting the scholarly and legal debate
as to whether the Commission’s antitrust investigation and
enforcement activities qualify it as an “ ‘independent and im-
partial tribunal’ ” for purposes of the European Convention
on Human Rights).
At the same time, the Commission has told this Court that
it is not a “tribunal” under the Act. It has added that,
should it be considered, against its will, a “tribunal,” its
“ability to carry out its governmental responsibilities” will
be seriously threatened. Brief for Commission of the Euro-
pean Communities as Amicus Curiae 2. Given the potential
need for the Commission to respond when a private firm (in-
cluding an American company) files a complaint with the
Commission and seeks discovery in an American court (say,
from a competitor), its concerns are understandable.
The Commission’s characterization of its own functions is,
in my view, entitled to deference. The majority disregards
the Commission’s opinion and states categorically that “the
Commission is a § 1782(a) ‘tribunal’ when it acts as a first-
instance decisionmaker.” Ante, at 246–247. In so ignoring
the Commission, the majority undermines the comity inter-
ests § 1782 was designed to serve and disregards the maxim

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272 INTEL CORP. v. ADVANCED MICRO DEVICES, INC.
Breyer, J., dissenting
that we construe statutes so as to “hel[p] the potentially con-
flicting laws of different nations work together in harmony—
a harmony particularly needed in today’s highly interde-
pendent commercial world.” F. Hoffmann-La Roche Ltd v.
Empagran S. A., ante, at 164–165.
The second limiting factor is also present. Neither Ad-
vanced Micro Devices, Inc. (AMD), nor any comparable pri-
vate party would be able to obtain the kind of discovery
AMD seeks, either in Europe or in the United States. In
respect to Europe, the Commission has told us that any per-
son in the world is free to file a complaint with the Commis-
sion, but it is the Commission that then investigates. The
private complainant lacks any authority to obtain discovery
of business secrets and commercial information. See Brief
for Commission of the European Communities as Amicus
Curiae 13, and n. 15. In respect to the United States, AMD
is a nonlitigant, apart from this discovery proceeding. Con-
ditions under which a nonlitigant may obtain discovery are
limited. AMD does not suggest that it meets those condi-
tions, or that it is comparable in any other way to one who
might obtain discovery under roughly analogous circum-
stances. In addition, the material it seeks is under a protec-
tive order. See ante, at 251, n. 4.
What is the legal source of these limiting principles? In
my view, they, and perhaps others, are implicit in the statute
itself, given its purpose and use of the terms “tribunal” and
“interested person.” § 1782(a). But even if they are not,
this Court’s “supervisory powers . . . permit, at the least, the
promulgation of procedural rules governing the management
of litigation,” not to mention “ ‘procedures deemed desirable
from the viewpoint of sound judicial practice although in
nowise commanded by statute or by the Constitution.’ ”
Thomas v. Arn, 474 U. S. 140, 146–147 (1985) (quoting Cupp
v. Naughten, 414 U. S. 141, 146 (1973)). See also Dickerson
v. United States, 530 U. S. 428, 437 (2000) (“This Court has
supervisory authority over the federal courts, and we may

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273 Cite as: 542 U. S. 241 (2004)
Breyer, J., dissenting
use that authority to prescribe rules of evidence and proce-
dure that are binding in those tribunals”). Intel Corp. has
asked us to exercise those powers in this case. Brief for
Petitioner 34–38. We should do so along the lines that I
suggest; consequently, we should reverse the judgment
below and order the complaint in this case dismissed.
I respec tfu l ly dissent from the Cour t’s contrary
determination.