Motorola Mobility, L.L.C. v. Advanced Standard Communication, L.L.C., No. 26-10747 (5th Cir. Oct. 29, 2026), reverses a district court order authorizing discovery under 28 U.S.C. § 1782 for use in European patent proceedings.

The most significant holding concerns the second factor, the receptivity of the foreign tribunal. The court rejected the view that the party resisting discovery must furnish “authoritative proof” that the foreign court would not accept the evidence. It explained that Ecuadorian Plaintiffs v. Chevron Corp. requires authoritative proof only for claims of foreign privilege, which fall under the statute’s express privilege carve-out.

The discretionary Intel factors, by contrast, “leave wide room for discretion”. Adopting the Third Circuit’s view, the court held that Intel does “not require [respondents] to prove a negative”. Instead, courts must weigh all the evidence about the character of the foreign proceedings as a whole. Here, the European court had already denied the same discovery and said it might reconsider at a later stage of the case, so the receptivity factor “balances against [discovery] by reason of prematurity”.

The Court also held that the third factor–circumvention of foreign proof-gathering restrictions–weighs against an applicant who turns to a U.S. court after a foreign tribunal has denied the same discovery.