FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ILYAS KHRAPUNOV,

Plaintiff-Appellee,

v.

PAVEL PROSYANKIN; JOHN DOE,

Objectors-Appellants.

No. 18-16254

D.C. No.

4:17-mc-80107-

HSG

OPINION

Appeal from the United States District Court

for the Northern District of California

Haywood S. Gilliam, Jr., District Judge, Presiding

Argued and Submitted December 20, 2018

San Francisco, California

Filed July 24, 2019

Before: Consuelo M. Callahan, N. Randy Smith,

and Mary H. Murguia, Circuit Judges.

Opinion by Judge Murguia;

Concurrence by Judge N.R. Smith;

Partial Concurrence and Partial Dissent by Judge Callahan
2 KHRAPUNOV V. PROSYANKIN

SUMMARY*

Discovery

The panel vacated the district court’s grant of an 

application under 28 U.S.C. § 1782 for discovery of 

evidence for use in a foreign tribunal and remanded for 

further proceedings.

The district court denied objectors relief from a 

magistrate judge’s order granting plaintiff’s application for 

issuance of a subpoena to Google, Inc., compelling the 

disclosure of certain subscriber information in the 

company’s possession. That information, plaintiff claimed, 

would aid his attempt to discharge two court orders issued 

against him in ongoing litigation in England. In the English 

proceeding, a Kazakhstan bank, alleging that it had been 

defrauded, had obtained a worldwide asset freeze order and 

cross-examination order against plaintiff. 

English courts subsequently denied plaintiff’s attempts 

to discharge the two orders. The panel concluded that these 

developments in the English litigation called into doubt the 

statutory requirement of § 1782 that the discovery be for use 

in a foreign “proceeding.” The panel therefore vacated the 

district court’s judgment and remanded for further 

proceedings.

Concurring in the judgment and dissenting, Judge 

Callahan wrote that the action was not moot, and she would 

 * This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
KHRAPUNOV V. PROSYANKIN 3

hold that a ruling resolving objections to a subpoena issued 

under § 1782 is dispositive, and thus, absent consent by the 

parties to a magistrate judge having general jurisdiction, 

such a matter must be determined de novo by a district court 

judge.

Concurring, Judge N.R. Smith wrote that the dissent was 

an advisory opinion.

COUNSEL

Michael L. Freedman (argued), Cara E. Trapani, and Jeffrey 

L. Bornstein, Rosen Bien Galvan & Grunfeld LLP, San 

Francisco, California, for Objectors-Appellants.

Matthew C. Dirkes (argued) and Martha Boersch, Boersch 

Shapiro LLP, Oakland, California, for Plaintiff-Appellee.

OPINION

MURGUIA, Circuit Judge:

28 U.S.C. § 1782 authorizes, but does not require, 

federal district courts to assist in the production of evidence 

for use in a foreign or international tribunal. Intel Corp. v. 

Advanced Micro Devices, Inc., 542 U.S. 241, 247 (2004). 

Here, the district court granted Plaintiff-Appellee Ilyas 

Khrapunov’s application for discovery under § 1782. 

However, the factual circumstances surrounding 

Khrapunov’s application have changed dramatically during 

the pendency of this appeal. We therefore vacate the decision 

below and remand to the district court to consider, in the first 

instance, whether the statutory requirements for discovery 
4 KHRAPUNOV V. PROSYANKIN

under § 1782 remain satisfied and whether, as a matter of the 

district court’s discretion, discovery remains appropriate.

I.

Khrapunov filed a § 1782 application in federal district 

court, seeking issuance of a subpoena to Google, Inc., 

compelling the disclosure of certain subscriber information 

in the company’s possession. That information, Khrapunov 

claimed, would aid his attempt to discharge two court orders 

issued against him in ongoing litigation in England.

The proceedings in England stem from Khrapunov’s 

alleged role in the misappropriation of billions of dollars 

from JSC BTA Bank, a major bank in Kazakhstan. The bank 

alleges that, with Khrapunov’s assistance, the bank’s prior 

chairman, Mukhtar Ablyazov, defrauded it of nearly 

$6 billion.

The bank obtained two court orders in the English 

litigation relevant to this appeal: an order imposing a 

worldwide freeze of Khrapunov’s assets, and an order

permitting the bank’s attorneys to cross-examine Khrapunov 

concerning his assets. Khrapunov filed separate applications 

in the English litigation to discharge the worldwide freeze 

order and the cross-examination order.

In August 2017, Khrapunov filed his § 1782 application 

in the Northern District of California, requesting that a 

subpoena issue to Google. The application was assigned to a 

magistrate judge who granted the application, and the 

subpoena issued.
KHRAPUNOV V. PROSYANKIN 5

Appellants-Objectors Pavel Prosyankin and John Doe1

moved to quash the subpoena. The magistrate judge declined 

to quash the subpoena in its entirety but did narrow its scope 

somewhat. Objectors then sought review by the district 

court. The district court denied relief, and Objectors 

appealed.

While these matters were pending in district court and on 

appeal, the proceedings in England continued.2 According to 

a supplemental declaration provided by Objectors on appeal, 

in February and May 2018, Khrapunov’s attempts to 

discharge the two court orders against him—the asset freeze 

order and the cross-examination order—were denied by 

English courts. Khrapunov was not given permission to 

appeal those denials, and at least one judge found 

Khrapunov’s arguments to be “totally without merit.” 

According to Objectors, this means Khrapunov’s discharge 

applications have “been finally determined against him, and 

Mr. Khrapunov cannot appeal or pursue them any further.” 

Khrapunov does not dispute that the discharge applications 

have been finally decided and that his request to appeal has 

been denied. Instead, he argues that he retains the ability to 

reopen those proceedings if he discovers new evidence—

like the subscriber information he seeks from Google.

Objectors argue that the English courts’ final, 

nonappealable denials of Khrapunov’s applications render 

 1 The magistrate judge allowed Doe, a user of one of the subpoenaed 

Gmail accounts, to proceed using a pseudonym based on Doe’s stated 

concern for his safety.

2 Both Khrapunov and Objectors moved to supplement the record 

on appeal with the decisions of the English courts and declarations 

describing the consequences of those decisions for this case. We grant 

these motions as well as Objectors’ related request for judicial notice.
6 KHRAPUNOV V. PROSYANKIN

this case moot. Alternatively, Objectors argue that the 

district court applied the incorrect standard in reviewing the 

magistrate judge’s decision and that the district court abused 

its discretion by failing to properly weigh the relevant factors 

when considering whether to grant the application under 

§ 1782.

II.

We have jurisdiction under 28 U.S.C. § 1291. In re 

Premises Located at 840 140th Ave. NE, Bellevue, Wash., 

634 F.3d 557, 567 (9th Cir. 2011). We review the district 

court’s decision under § 1782 for abuse of discretion. Four 

Pillars Enters. Co., Ltd. v. Avery Dennison Corp., 308 F.3d 

1075, 1078 (9th Cir. 2002).

III.

Section 1782 provides:

[t]he district court of the district in which a 

person resides or is found may order him to 

. . . produce a document or other thing for use 

in a proceeding in a foreign or international 

tribunal . . . . The order may be made . . .

upon the application of any interested 

person[.]

28 U.S.C. § 1782(a). Section 1782’s statutory language has 

been distilled to permit district courts to authorize discovery 

where three general requirements are satisfied: (1) the person 

from whom the discovery is sought “resides or is found” in 

the district of the district court where the application is made; 

(2) the discovery is “for use in a proceeding in a foreign or 

international tribunal”; and (3) the application is made by a 

foreign or international tribunal or “any interested person.” 
KHRAPUNOV V. PROSYANKIN 7

See 28 U.S.C. § 1782(a); see also Brandi-Dohrn v. IKB 

Deutsche Industriebank AG, 673 F.3d 76, 80 (2d Cir. 2012); 

In re Clerici, 481 F.3d 1324, 1331–32 (11th Cir. 2007).

In this case, the second statutory requirement—that the 

discovery be for use in a foreign “proceeding”—is called 

into doubt by the developments in the English litigation. In 

Intel, the Supreme Court explained that a foreign proceeding 

need not be “pending” or even “imminent” when the 

discovery is sought. 542 U.S. at 258–59. So long as a future 

proceeding is “within reasonable contemplation,” it satisfies

the statute’s requirement. Id. at 259. Intel, however, did not 

address the situation here: where the “proceeding” for which 

the discovery was initially sought has concluded.

In a case decided before Intel, the Second Circuit 

addressed—in a situation almost identical to that present 

here—whether the possibility of reopening an already 

completed foreign proceeding could satisfy § 1782’s 

requirement. See Euromepa, S.A. v. R. Esmerian, Inc., 

154 F.3d 24, 29 (2d Cir. 1998). That court concluded that the 

possibility of reopening proceedings could not satisfy 

§ 1782, holding:

Section 1782 is designed to provide 

discovery in aid of foreign litigation, not to 

provide discovery to justify the reopening of 

already completed foreign litigation. The 

motion to reopen the proceedings in the 

French Court of Appeal thus cannot serve as 

a predicate foreign proceeding for the 

Petition.

Id.
8 KHRAPUNOV V. PROSYANKIN

Although the Euromepa decision cited the “imminence” 

standard the Supreme Court rejected in Intel, see id., we are 

nevertheless convinced that Euromepa would come out the 

same way under Intel’s “reasonable contemplation” 

standard. Although § 1782 authorizes discovery in a “broad 

range” of circumstances, Intel, 542 U.S. at 259, those 

circumstances are not without some limit. Cf. id. (“[W]e hold 

that § 1782(a) requires only that a dispositive ruling by the 

Commission, reviewable by the European courts, be within 

reasonable contemplation.”) (emphasis added). As a general 

matter, the mere possibility that discovery might permit 

already concluded foreign proceedings to be reopened likely 

approaches that limit.

We have recognized that district courts “are in the best 

position to review the details of a § 1782 request and to 

determine whether judicial assistance is justified.” Four 

Pillars, 308 F.3d at 1080 (alteration incorporated). In this 

case, in light of the developments in the English litigation, 

we conclude that some additional fact-finding about the 

nature of the English “proceeding” is necessary—about the 

discovery sought and its relationship to the possibility of 

reopening the English proceedings; about the standard 

Khrapunov must satisfy to reopen those proceedings; about 

the relative likelihood of satisfying that standard; and about 

whether the discovery sought will actually assist Khrapunov 

in satisfying that standard. We leave to the district court to 

determine, in light of these facts, whether the statutory 

requirements of § 1782 remain satisfied.

Additionally, even where an applicant satisfies § 1782’s 

statutory prerequisites, the district court still retains 

substantial discretion to permit or deny the requested 

discovery. Intel, 542 U.S. at 264–65. The developments in 

the English litigation are relevant to the discretionary factors 
KHRAPUNOV V. PROSYANKIN 9

courts consider when evaluating § 1782 applications, as 

well. See id., 542 U.S. at 264–65. In particular, the English 

courts’ willingness to proceed to judgment without the 

benefit of the evidence Khrapunov sought,3 and the courts’ 

treatment of Khrapunov’s claims (including one judge’s 

conclusion that Khrapunov’s position was “totally without 

merit”), likely bear on both the “character of the proceedings 

underway abroad” and the “receptivity” of the English courts 

“to U.S. federal-court judicial assistance.” In re Premises 

Located at 840 140th Ave., 634 F.3d at 563 (quoting Intel, 

542 U.S. at 264–65). On remand, it may be appropriate for 

the district court to reevaluate these discretionary factors, as 

well, in deciding whether discovery remains appropriate in 

this case.

The dissent suggests our decision will require district 

courts, in evaluating § 1782 applications, to adjudicate each 

new procedural development in the foreign case. But not all 

procedural developments are created equally, and we trust 

that district court judges will be able to separate the 

insignificant from the significant, mere delay tactics from 

events of consequence. After all, “Congress gave the federal 

district courts broad discretion to determine whether, and to 

what extent, to honor a request for assistance under

28 U.S.C. § 1782.” Four Pillars, 308 F.3d at 1078.

 3 Our dissenting colleague suggests that it is only natural that the 

English litigation proceeded without the discovery Khrapunov sought. 

But it is not apparent why that is necessarily so. Khrapunov could have 

attempted to stay the litigation to allow time for the production of the 

evidence he sought. And, even if he did attempt to stay the litigation but 

was unsuccessful, the English courts’ unwillingness to delay proceedings 

might suggest that the English courts were not particularly interested in 

“U.S. federal-court judicial assistance” in the first place. Intel, 542 U.S. 

at 264.
10 KHRAPUNOV V. PROSYANKIN

Considering the substantial discretion reserved to the 

district courts, see Intel, 542 U.S. at 264–65, we vacate the 

district court’s order to permit a full exercise of that 

discretion.

IV.

Accordingly, the judgment of the district court is 

VACATED and the case is REMANDED for further 

proceedings consistent with this opinion. Each party shall 

bear its own costs.

N.R. SMITH, Circuit Judge, concurring:

The dissent’s foray into the orthogonal issue of the 

Federal Magistrates Act “swings hard at the wrong pitch.” 

Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 

1942 (2019) (Sotomayor, J., dissenting). The dissent’s 

advisory opinion about an issue of first impression does not 

directly bear on our resolution and demands no substantive 

response.

CALLAHAN, Circuit Judge, concurring in the judgment and 

dissenting:

Congress has long authorized “federal district courts to 

assist in the production of evidence for use in a foreign or 

international tribunal.” Intel Corp. v. Advanced Micro 

Devices, Inc., 542 U.S. 241, 246 (2004); see 28 U.S.C. 

§ 1782. Of course, while an applicant seeks discovery under 

28 U.S.C. § 1782, nothing stops the foreign tribunal from 

proceeding with its own case. The statute’s purpose thus is 
KHRAPUNOV V. PROSYANKIN 11

not only to assist participants in foreign litigation but to 

“provid[e] efficient assistance.” Advanced Micro Devices, 

Inc. v. Intel Corp., 292 F.3d 664, 669 (9th Cir. 2002) 

(emphasis added), aff’d, 542 U.S. 241.

As the applicant under § 1782, appellee, Ilyas 

Khrapunov, was required to show that he sought discovery 

for use in an actual proceeding (or one “within reasonable 

contemplation,” Intel Corp., 542 U.S. at 259) in a foreign 

tribunal. No one—including appellants, Pavel Prosyankin 

and John Doe (collectively, Objectors), and the majority—

disputes that Khrapunov satisfied that requirement. 

Khrapunov is a party to an ongoing lawsuit in England.

Naturally, during the past two years while the parties 

have been litigating whether the requested discovery should 

be allowed, the litigation in England has carried on. Citing 

further developments in the foreign proceeding, the majority 

imposes on Khrapunov an ongoing burden of proving the 

statutory elements for eligibility for discovery at all stages 

of the case. Not only is there no support in the statute or our 

case law for imposing such a continuing burden, it’s also bad 

policy. The majority’s holding arms would-be discovery 

targets with a tool for evading discovery under § 1782. By 

simply forcing re-litigation of discovery eligibility based on 

the precise procedural posture of the foreign proceeding each 

time some new development occurs in the foreign case, a 

would-be discovery target can stall until the foreign 

proceeding ends.

In addition to undermining the statutory aim of 

efficiency, the majority’s holding foists upon district courts 

the task of adjudicating the significance of each procedural 

development in the foreign case. This is contrary to our edict 

that federal courts resolving § 1782 applications should not 

“involve themselves in technical questions of foreign law.” 
12 KHRAPUNOV V. PROSYANKIN

See In re Request For Judicial Assistance From the Seoul 

Dist. Criminal Court, Seoul, Korea, 555 F.2d 720, 723 (9th 

Cir. 1977).

I fear that the majority’s decision is likely to accomplish 

little besides causing further delay. If, upon remand, the 

magistrate judge again concludes that the statutory elements 

are still satisfied—which is what I would conclude—the 

parties would essentially be back to square one without 

resolution of the questions squarely before us now. I would 

address the issues raised by the parties, including the 

question of first impression regarding the Federal 

Magistrates Act.

In my view, Objectors have not met their heavy burden 

of showing mootness, and we thus have jurisdiction and 

should decide this case on the merits. In addressing the 

merits of the case, I would hold that a ruling resolving 

objections to a subpoena issued under § 1782 is dispositive, 

and thus, absent consent by the parties to a magistrate judge 

having general jurisdiction, such a matter must be 

determined de novo by a district court judge. The district 

court here reviewed the magistrate judge’s ruling for clear 

error. Accordingly, although the magistrate judge’s analysis 

of the relevant factors under § 1782 was reasonable, I would 

vacate and remand for a district judge to determine the 

matter de novo.

I.

Objectors assert three grounds for vacating or reversing 

the district court’s decision: (1) the court lacks jurisdiction 

because the case is moot; (2) the magistrate judge lacked the 

authority to issue the order denying in part the motion to 

quash; and (3) relevant considerations weigh against 

allowing discovery under § 1782.
KHRAPUNOV V. PROSYANKIN 13

A.

Objectors argue that recent developments in the English 

court proceedings have rendered the § 1782 application 

moot. They argue that the orders issued by the English 

courts after the magistrate judge’s order here have 

effectively foreclosed Khrapunov’s ability to challenge the 

worldwide asset freeze and cross-examination orders and 

such a challenge was the only basis offered by Khrapunov 

for seeking discovery under § 1782. Objectors thus ask us 

to vacate the orders below and remand with directions to 

dismiss the action. See United States v. Munsingwear, Inc.,

340 U.S. 36, 39 (1950). Objectors have not satisfied their 

burden of showing that this case is moot.

“To qualify as a case fit for federal-court adjudication, 

‘an actual controversy must be extant at all stages of review, 

not merely at the time the complaint is filed.’” Arizonans for 

Official English v. Arizona, 520 U.S. 43, 67 (1997) (quoting 

Preiser v. Newkirk, 422 U.S. 395, 401 (1975)). “There is 

thus no case or controversy, and a suit becomes moot, ‘when 

the issues presented are no longer “live” or the parties lack a 

legally cognizable interest in the outcome.’” Chafin v. 

Chafin, 568 U.S. 165, 172 (2013) (quoting Already, LLC v. 

Nike, Inc., 568 U.S. 85, 91 (2013)). “But a case ‘becomes 

moot only when it is impossible for a court to grant any 

effectual relief whatever to the prevailing party.’” Id.

(quoting Knox v. Serv. Emps. Int’l Union, Local 1000, 

567 U.S. 298, 307 (2012)). “As long as the parties have a 

concrete interest, however small, in the outcome of the 

litigation, the case is not moot.” Id. (quoting Knox, 567 U.S. 

at 307–08). “The party asserting mootness bears a ‘heavy’ 

burden; a case is not moot if any effective relief may be 

granted.” Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 
14 KHRAPUNOV V. PROSYANKIN

1006, 1017 (9th Cir. 2012) (citing Forest Guardians v. 

Johanns, 450 F.3d 455, 461 (9th Cir. 2006)).

As a preliminary matter, Khrapunov argues we should 

not consider the recent developments in the English court 

proceedings because the district court did not consider such 

evidence. Khrapunov’s argument is without merit. 

Reviewing courts routinely—and often necessarily—

consider in the first instance evidence of events occurring 

after the district court’s decision to determine whether the 

case has become moot. See, e.g., Camreta v. Greene, 

563 U.S. 692, 710–11 (2011) (finding mootness when 

claimant had moved out of state after the grant of certiorari); 

Bain v. Cal. Teachers Ass’n, 891 F.3d 1206, 1214 (9th Cir. 

2018) (finding mootness when plaintiffs seeking prospective 

relief against union policy canceled their union 

membership); Akina v. Hawaii, 835 F.3d 1003, 1010 (9th 

Cir. 2016) (finding mootness when the challenged election 

had been canceled, no other ratification elections were 

scheduled, and the entity pursuing the originally scheduled 

election had been dissolved).

Indeed, not only is it appropriate for a party to present 

such extra-record evidence, counsel are duty-bound “to 

bring to the federal tribunal’s attention, ‘without delay,’ facts 

that may raise a question of mootness.” Arizonans for 

Official English, 520 U.S. at 68 n.23 (quoting Bd. of License 

Comm’rs of Town of Tiverton v. Pastore, 469 U.S. 238, 240 

(1985)); see also Lowry v. Barnhart, 329 F.3d 1019, 1024 

(9th Cir. 2003) (“Consideration of new facts may even be 
KHRAPUNOV V. PROSYANKIN 15

mandatory, for example, when developments render a 

controversy moot and thus divest us of jurisdiction.”).1

In his § 1782 application, Khrapunov stated that the 

requested subpoena was for use in the English proceedings 

to support his applications to discharge both the worldwide 

freeze order and the cross-examination order. The English 

trial courts denied Khrapunov’s discharge applications, and 

the English Court of Appeal has now denied Khrapunov 

permission to appeal the two interlocutory orders. Objectors 

argue that under English law, the English Court of Appeal’s 

orders are final and non-appealable and therefore Khrapunov 

cannot introduce any additional evidence in the English 

proceedings.

In my view, Objectors have not met their heavy burden 

of showing that the case is moot. Objectors overstate the 

matter when suggesting that Khrapunov has “no ability” to 

introduce evidence in the English court proceedings. In his 

declaration, Objectors’ English law expert, Anthony 

Beswetherick, describes his experience in and knowledge of 

the English court system, identifies the recent court 

decisions in the English court proceedings, and explains the 

significance of those decisions. Beswetherick opines that, as 

a matter of English civil procedure, “Mr. Khrapunov’s 

Discharge Applications have been finally determined 

against him, and Mr. Khrapunov cannot appeal or pursue 

them any further.” However, Beswetherick also discusses a 

procedure by which Khrapunov could seek to “reopen” his 

 1 I join the majority in granting Objectors’ motion to take judicial 

notice of orders issued by the English courts and the parties’ respective 

requests to supplement the record with the declarations of the English 

barristers who opine on the significance of the recent English court 

rulings for purposes of our mootness analysis.
16 KHRAPUNOV V. PROSYANKIN

request for permission to appeal the denial of his discharge 

applications. Although Beswetherick characterizes the 

requirements meriting a reopening of the request as “highly 

restrictive” and “strictly applied,” he acknowledges that the 

possibility nonetheless remains. A case “becomes moot only 

when it is impossible for a [federal] court to grant any 

effectual relief.” See Knox, 567 U.S. at 307 (emphasis 

added).

Here, the records before us reflect that the litigation in 

England is ongoing. The federal court could grant effectual 

relief by ordering the requested discovery. What the foreign 

tribunal does when presented with those materials is of little 

consequence to the question of Article III jurisdiction.

Objectors’ argument boils down to an assertion that, in 

light of the final determination of Khrapunov’s discharge 

applications, the requested discovery is no longer “for use in 

a proceeding in a foreign or international tribunal.” 

28 U.S.C. § 1782(a). But this argument conflates a statutory 

element of a § 1782 application and constitutional 

considerations of mootness. Though perhaps they overlap, 

the two issues are not the same. In determining whether the 

case is moot, we do not simply analyze whether Khrapunov 

can still satisfy the statutory prerequisites for discovery 

under § 1782. “Mootness can be characterized as ‘the 

doctrine of standing set in a time frame: The requisite 

personal interest that must exist at the commencement of the 

litigation (standing) must continue throughout its existence 

(mootness).’” Cook Inlet Treaty Tribes v. Shalala, 166 F.3d 

986, 989 (9th Cir. 1999) (quoting U.S. Parole Comm’n v. 

Geraghty, 445 U.S. 388, 397 (1980)). To have standing, a 

plaintiff need not establish every element of a claim. “The 

essence of the standing question, in its constitutional 

dimension, is whether the plaintiff has alleged such a 
KHRAPUNOV V. PROSYANKIN 17

personal stake in the outcome of the controversy [as] to 

warrant his invocation of federal-court jurisdiction and to 

justify exercise of the court’s remedial powers on his 

behalf.” Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1108 

(9th Cir. 2003) (alteration in original) (quoting Vill. of 

Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 

260–61 (1977)). Despite the seemingly low likelihood of 

success of Khrapunov’s anticipated efforts to make use of 

the sought-for discovery in the English court proceedings, 

the status of those proceedings—at least as reflected in the 

records before this court—has not eliminated Khrapunov’s 

personal stake such that he no longer has standing to pursue 

his § 1782 application.

Even if the mootness analysis were to turn on whether 

Khrapunov can continue to satisfy the elements for 

eligibility for discovery under § 1782, as Objectors argue, 

Objectors rely on cases that applied a now-rejected standard 

for showing that the discovery sought is “for use in a 

proceeding in a foreign or international tribunal.” See

28 U.S.C. § 1782(a). Objectors—and the majority—rely on 

two Second Circuit decisions that required a strict showing 

that the foreign proceeding is “pending” or “imminent.” See

In re Ishihara Chem. Co., 251 F.3d 120, 125–26 (2d Cir. 

2001); Euromepa, S.A. v. R. Esmerian, Inc., 154 F.3d 24, 29 

(2d Cir. 1998). But the Supreme Court in Intel rejected that 

standard, holding instead that adjudicative proceedings need 

to be only “within reasonable contemplation.” Intel, 

542 U.S. at 259; see id. (“In short, we reject the view, 

expressed in In re Ishihara Chemical Co., that § 1782 comes 
18 KHRAPUNOV V. PROSYANKIN

into play only when adjudicative proceedings are ‘pending’ 

or ‘imminent.’”).2

Because Objectors have not met their “heavy” burden of 

showing mootness, I would hold that we are not deprived of 

jurisdiction. See Karuk Tribe of Cal., 681 F.3d at 1017. I 

thus proceed by offering my view on the merits of the appeal.

B.

Objectors argue that magistrate judges are not authorized 

to decide a motion to quash a subpoena issued under § 1782 

because such matters are “dispositive” within the meaning 

of the Federal Magistrates Act and Federal Rule of Civil 

Procedure 72. If Objectors are correct, the magistrate judge 

lacked the authority to decide Objectors’ motion to quash 

and the district court erred by reviewing the magistrate 

judge’s “decision” for clear error rather than determining the 

matter de novo. I agree with Objectors.

“The power of federal magistrate judges is limited by 

28 U.S.C. § 636.” Mitchell v. Valenzuela, 791 F.3d 1166, 

1168 (9th Cir. 2015) (quoting Estate of Conners by Meredith 

v. O’Connor, 6 F.3d 656, 658 (9th Cir. 1993)). That statute 

“provides that certain matters (for example, non-dispositive 

pretrial matters) may be referred to a magistrate judge for 

decision, while certain other matters (such as case-

 2 There may be another barrier to Objectors meeting their heavy 

burden of showing mootness: the underlying litigation in England is 

ongoing. Even if Khrapunov’s applications to discharge the worldwide 

freeze order and the cross-examination order have been finally decided, 

those decisions did not terminate the proceedings against Khrapunov. 

Because the litigation in England involving Khrapunov is ongoing, this 

case is distinguishable from the two Second Circuit cases the Supreme 

Court overruled in Intel.
KHRAPUNOV V. PROSYANKIN 19

dispositive motions, petitions for writs of habeas corpus) 

may be referred only for evidentiary hearing, proposed 

findings, and recommendations.” United States v. ReynaTapia, 328 F.3d 1114, 1118 (9th Cir. 2003) (en banc) 

(footnotes omitted).

Federal Rule of Civil Procedure 72, which implements 

§ 636(b)(1), distinguishes between “dispositive” and 

“[n]ondispositive” matters. Under the rule, a magistrate 

judge may “hear and decide” “a pretrial matter not 

dispositive of a party’s claim or defense,” and such a 

decision may be set aside by the district court only if it is 

“clearly erroneous” or “contrary to law.” Fed. R. Civ. P. 

72(a). For a dispositive matter, however, a magistrate judge 

may issue only “a recommended disposition, including, if 

appropriate, proposed findings of fact.” Fed. R. Civ. P. 

72(b). Upon a challenge to the recommended disposition, 

the district court “must determine de novo” whether to adopt 

the magistrate judge’s recommendation. Id.

Section 636(b)(1)(A) provides a list of matters that may 

not be heard and determined by a magistrate judge. “The 

matters listed in 28 U.S.C. § 636(b)(1)(A) are dispositive 

while, in general, other matters are non-dispositive.” Flam 

v. Flam, 788 F.3d 1043, 1046 (9th Cir. 2015) (citing Fed. R. 

Civ. P. 72). Although the list in “§ 636(b)(1)(A) appears to 

be exhaustive,” in light of Supreme Court precedent 

expanding the list of dispositive matters, “we have adopted 

a functional approach” to determining whether a matter is 

dispositive. Id.; see also Mitchell, 791 F.3d at 1168 

(“Dispositive matters are those listed in section 

636(b)(1)(A), as well as ‘analogous’ matters.”). Under this 

functional approach, we consider whether the decision on 

the matter would deny or grant “the ultimate relief sought” 

in the action or whether the decision would dispose of any 
20 KHRAPUNOV V. PROSYANKIN

claims or defenses. SEC v. CMKM Diamonds, Inc., 729 F.3d 

1248, 1260 (9th Cir. 2013). If so, the matter is dispositive. 

Several other circuits follow a similar approach. See, e.g., 

Williams v. Beemiller, Inc., 527 F.3d 259, 265 (2d Cir. 2008) 

(undertaking a functional analysis and citing decisions of the 

First, Third, Sixth, Seventh, and Tenth Circuits that have 

done so as well).

The parties have not cited, and I am not aware of, any 

appellate precedent on whether a decision to allow or deny 

discovery under § 1782 is dispositive.

3

 Applying our 

“functional approach,” I would hold that such decisions are 

dispositive.

The ultimate relief sought in a § 1782 application is 

court-ordered discovery. A decision on whether to quash a 

subpoena issued under § 1782 necessarily grants or denies 

“the ultimate relief sought.” This sets § 1782 applications 

apart from discovery decisions in ongoing domestic civil or 

criminal proceedings. See 12 Charles Alan Wright et al., 

Federal Practice and Procedure § 3068.2 (2d ed. 1997) 

(making the same distinction and concluding that “[t]he sole 

purpose of the [§ 1782] proceeding is to obtain discovery, 

and accordingly a motion to compel such discovery is a final, 

dispositive matter”).

Although we have not previously decided whether 

rulings on motions to quash in § 1782 proceedings are 

dispositive under our functional approach, we have 

 3 In dicta, the Tenth Circuit has stated that it “question[s]” whether 

a § 1782 application “constitutes a ‘pretrial matter pending before the 

court’ for the purposes of referring a matter to a magistrate judge under” 

a local rule concerning reference of non-dispositive discovery matters. 

Phillips v. Beierwaltes, 466 F.3d 1217, 1222 (10th Cir. 2006) (quoting 

28 U.S.C. § 636(b)(1)(A)).
KHRAPUNOV V. PROSYANKIN 21

repeatedly held that such rulings are final, appealable orders 

for purposes of 28 U.S.C. § 1291. See, e.g., In re Premises 

Located at 840 140th Ave. NE, Bellevue, Wash., 634 F.3d 

557, 565–67 (9th Cir. 2011); United States v. Sealed 1, Letter 

of Request for Legal Assistance from the Deputy Prosecutor 

Gen. of the Russian Fed’n, 235 F.3d 1200, 1203 (9th Cir. 

2000); In re Letters Rogatory from Tokyo Dist. Prosecutor’s 

Office, Tokyo, Japan, 16 F.3d 1016, 1018 n.1 (9th Cir. 

1994); In re Request For Judicial Assistance, 555 F.2d 

at 722. In so holding, we have emphasized the “important” 

distinction between § 1782 proceedings and discovery in 

typical civil and criminal cases. In re Premises, 634 F.3d 

at 565–66. We observed in In re Premises that in a domestic 

criminal case, “the district court’s order enforcing a 

subpoena is but one step toward the ultimate resolution of 

the underlying criminal case.” Id. at 566. In contrast, “the 

district court’s subpoena order [in a § 1782 proceeding] is 

the district court’s last, or ‘final,’ order because, critically, 

the underlying case in a § 1782 appeal necessarily is 

conducted in a foreign tribunal. Once the district court has 

ruled on the parties’ motions concerning the evidentiary 

requests, there is no further case or controversy before the 

district court.” Id.

Determining finality under § 1291 is similar (though not 

identical) to our functional approach for determining 

whether a decision is dispositive under § 636(b)(1)(A) and 

Rule 72. In light of our holding that after a district court has 

denied a motion to quash in a § 1782 application “there is no 

further case or controversy before the district court,” In re 

Premises, 634 F.3d at 566, it would be anomalous to 

conclude that such a decision by the district court is not 

dispositive of the federal court proceeding, see Flam, 

788 F.3d at 1047.
22 KHRAPUNOV V. PROSYANKIN

The procedure contemplated by § 1782 is analogous to 

an action brought by a domestic agency to enforce an 

administrative subpoena under 29 U.S.C. § 161. In both 

types of proceedings, an interested party seeks the aid of a 

federal court in compelling discovery for use in a proceeding 

before another tribunal—either a foreign tribunal (§ 1782) or 

a domestic administrative body (§ 161). Our sister circuits 

that have addressed the issue agree that a ruling on a motion 

to enforce an administrative subpoena is dispositive. See

EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 

2017) (holding that the district court erroneously treated the 

agency’s motion to enforce a subpoena as a non-dispositive 

matter); United States v. Mueller, 930 F.2d 10, 12 (8th Cir. 

1991) (per curiam) (holding that the district court properly 

conducted de novo review of a magistrate judge’s proposed 

order resolving an IRS petition to enforce a discovery 

summons); Aluminum Co. of Am., Badin Works, Badin, N.C. 

v. U.S. Envtl. Prot. Agency, 663 F.2d 499, 501 (4th Cir. 

1981) (holding that denial of a motion to quash an 

administrative search warrant was dispositive requiring de 

novo review by the district court); United States v. First 

Nat’l Bank of Atlanta, 628 F.2d 871, 873 (5th Cir. 1980) 

(raising sua sponte the issue of whether the district court 

made a de novo determination of the magistrate judge’s 

order enforcing an IRS summons).

The Third Circuit’s analysis is particularly instructive. 

In City of Long Branch, the court reaffirmed its prior holding 

that a motion to enforce an administrative subpoena is a 

dispositive motion because such a proceeding “is over 

regardless of which way the court rules.” 866 F.3d at 100 

(quoting NLRB v. Frazier, 966 F.2d 812, 817 (3d Cir. 1992)). 

“Once the court grants or quashes the agency subpoena, it 

determines with finality the duties of the parties. The district 

court proceeding is admittedly collateral to the [agency’s] 
KHRAPUNOV V. PROSYANKIN 23

pending administrative proceeding, but the question of 

whether or not to enforce the subpoena is the only matter 

before the court.” Frazier, 966 F.2d at 817–18. The Third 

Circuit thus concluded that a ruling on a motion to enforce 

an administrative subpoena is “a final decision which 

dispose[s] entirely of the [agency’s] business before the 

court.” Id. at 818. A ruling on whether to quash a subpoena 

issued under § 1782 likewise “determines with finality the 

duties of the parties” in federal court. See id. at 817.

Khrapunov offers several arguments in defense of the 

district court’s conclusion that rulings on motions to quash 

in § 1782 proceedings are non-dispositive. First, he argues 

that, under our functional approach, Objectors’ motion to 

quash is ancillary and does not dispose of underlying claims 

or defenses. But the motion to quash is “ancillary” only to 

the foreign proceedings. As we held in Flam, the issue is 

whether the decision grants or denies the ultimate relief 

sought in the federal court proceeding, not whether the 

decision will dispose of claims or defenses in the underlying 

proceedings to be litigated elsewhere. 788 F.3d at 1046–47 

(holding that remand orders are dispositive even though such 

orders do not resolve any underlying claim or defense).

Second, Khrapunov argues that the denial of a motion to 

quash in a § 1782 proceeding is non-dispositive because the 

prospect of additional litigation remains if, for example, the 

subpoenaed party fails to comply with the court’s order. But 

that possibility exists in virtually all cases, even after the 

entry of a final judgment. For example, a plaintiff whose 

lawsuit results in a money judgment may face further 

litigation if the defendant does not willingly pay the 

judgment; yet there is no doubt the ultimate decision in a 

civil lawsuit (e.g., a money judgment) is dispositive within 

the meaning of § 636(b)(1) and Rule 72. The possibility that 
24 KHRAPUNOV V. PROSYANKIN

a party may defy the court’s order granting or denying the 

ultimate relief sought is not a basis for concluding that such 

an order is non-dispositive.

Third, Khrapunov relies on our decision in Four Pillars 

Enters. Co. v. Avery Dennison Corp., 308 F.3d 1075 (9th 

Cir. 2002). But in that case, we did not decide, let alone 

consider, the issue presented here—whether rulings on 

§ 1782 applications are dispositive. We had no occasion to 

consider the issue because the appellant did not raise it. 

Instead, the appellant argued only that the magistrate judge 

abused his discretion in denying the discovery, implicitly 

conceding that the magistrate judge was authorized to decide 

its discovery request under § 1782. It is axiomatic that cases 

are not authority for issues not considered. See United States 

v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992); Sakamoto v. 

Duty Free Shoppers, Ltd., 764 F.2d 1285, 1288 (9th Cir. 

1985) (“[U]nstated assumptions on non-litigated issues are 

not precedential holdings binding future decisions.”).

Fourth, Khrapunov suggests that, because the court of 

appeals reviews a district court’s decision on a § 1782 

application for abuse of discretion, we should defer to the 

district court’s conclusion that a decision on a § 1782 

application is non-dispositive. Khrapunov misconstrues the 

standard of review. A decision on whether to issue a 

subpoena under § 1782 or whether to quash or limit the 

scope of such a subpoena is reviewed for abuse of discretion 

(assuming the threshold statutory elements are met). Four 

Pillars, 308 F.3d at 1078. In contrast, the determination of 

whether a decision is dispositive under § 636(b)(1) and Rule 

72—i.e., whether the magistrate judge is authorized to 

decide the matter—is a question of law reviewed de novo. 

Mitchell, 791 F.3d at 1168; Bastidas v. Chappell, 791 F.3d 

1155, 1159 (9th Cir. 2015) (“The authority of magistrate 
KHRAPUNOV V. PROSYANKIN 25

judges ‘is a question of law subject to de novo review.’” 

(quoting United States v. Carr, 18 F.3d 738, 740 (9th Cir. 

1994))). In any event, “a district court abuses its discretion 

when it makes an error of law.” United States v. Hinkson, 

585 F.3d 1247, 1261 (9th Cir. 2009) (en banc) (citing Cooter 

& Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)).

Finally, Khrapunov cites a practice of district courts 

within our circuit treating rulings on § 1782 applications as 

non-dispositive.4 But the district court cases cited by 

Khrapunov rely on reasoning that doesn’t square with our 

decisions interpreting § 636(b)(1) and Rule 72. Those 

district court cases, for example, fail to distinguish between 

§ 1782 proceedings and discovery in domestic civil or 

criminal cases, conclude that § 1782 proceedings are 

ancillary to the underlying foreign proceedings, and rely on 

our non-holding in Four Pillars.

In cases where the district court erroneously interpreted 

a dispositive matter as non-dispositive—and thus reviewed 

the magistrate judge’s ruling through a deferential lens—we 

have routinely vacated and remanded for the district court to 

consider the motion as a dispositive matter. See Mitchell, 

791 F.3d at 1174; Bastidas, 791 F.3d at 1164; Flam, 

788 F.3d at 1048; United States v. Rivera-Guerrero, 

377 F.3d 1064, 1071–72 (9th Cir. 2004). Other circuits are 

in accord. See City of Long Branch, 866 F.3d at 101 (citing 

Mitchell, 791 F.3d at 1174, and Flam, 788 F.3d at 1048); 

 4 Some district courts within the circuit have treated rulings on 

§ 1782 applications as dispositive. See, e.g., Holder v. Holder, 392 F.3d 

1009, 1013 (9th Cir. 2004) (noting that the district court reviewed de 

novo the magistrate judge’s report and recommendation); Advanced 

Micro Devices v. Intel Corp., No. C 01-7033, 2004 WL 2282320, at *1 

(N.D. Cal. Oct. 4, 2004) (reviewing magistrate judge’s report and 

recommendation de novo).
26 KHRAPUNOV V. PROSYANKIN

Williams, 527 F.3d at 266; Vogel v. U.S. Office Prod. Co., 

258 F.3d 509, 520 (6th Cir. 2001); First Union Mortg. Corp. 

v. Smith, 229 F.3d 992, 997 (10th Cir. 2000). I would do the 

same here.

II.

Because Objectors have not met their heavy burden of 

showing that this action is moot, we have jurisdiction and are 

thus duty-bound to decide the merits of this case. I would 

hold that a decision on a motion to quash a subpoena issued 

under 28 U.S.C. § 1782 is not the type of pretrial matter the 

Federal Magistrates Act permits district courts to delegate to 

the final authority of magistrate judges. When a magistrate 

judge is designated to conduct a hearing on such a motion, 

the magistrate judge should issue only a recommendation for 

the disposition (and, if applicable, proposed findings of fact). 

If the recommendation is challenged, a judge of the district 

court must determine the matter de novo.

The majority’s decision to remand for the magistrate 

judge to reconsider the threshold elements of § 1782 not only 

will cause unnecessary delay, it allows the majority to 

sidestep the unsettled question presented by the case. We 

are missing an opportunity to clarify how § 1782 fits within 

our jurisprudence interpreting the Federal Magistrates Act. 

I would vacate and remand for a district judge to determine 

the matter de novo.