And the Split Goes On … Another Circuit Weighs in on Whether 28 USC Section 1782 Provides for Discovery in Aid of Private, Foreign, Commercial Arbitration. Seventh Circuit Panel (Not Judge Barrett) Says “No.” So Does D. Del. for A Second Time
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By George H. Friedman, SAA Publisher & Editor-in-Chief

Joining the Second and Fifth Circuits, the Seventh Circuit holds that 28 USC Section 1782 does not provide for discovery in aid of private, foreign, commercial arbitration. And the District of Delaware follows suit for the second time.

We have already reported on this issue several times this year. To review, under 28 U.S.C. § 1782, a party to a matter pending in a “foreign or international tribunal” can seek an ex parte order in aid of discovery. Specifically: “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 … for use in the foreign proceeding.” But does section 1782 cover foreign, private arbitration proceedings? The answer is “Yes and No,” depending on the Circuit. Here was the split before September 22: the Second and Fifth, and two Third Circuit District Courts hold that section 1782 covers only governmental arbitration forums. The Fourth, Sixth and Ninth Circuits extend section 1782’s reach to private arbitration organizations. The latest entry in the “no” camp is the Seventh Circuit, which holds in Servotronics, Inc. v. Rolls-Royce PLC, No. 19-1847, 2020 WL 5640466 (Sept. 22, 2020), that section 1782 does not extend to private international commercial arbitration.

Same Case Yields Different Results

We covered in SAA 2020-13 (Apr. 8) Servotronics, Inc. v. The Boeing Co. and Rolls-Royce PLC, 954 F.3d 209 (4th Cir. Mar. 30, 2020), where in a case involving a private commercial  arbitration being held in England under Chartered Institute of Arbitrators Rules, the Court upheld a District Court decision ordering discovery from three Boeing employees residing in South Carolina. In this latest case the District Court bars Servotronics from obtaining discovery documents located in Illinois for use in the same private arbitration pending in London, and the Seventh Circuit affirms unanimously. Among the Court’s rationales is a perceived conflict between section 1782 and the Federal Arbitration Act: “The discovery assistance authorized by § 1782(a) is notably broader than that authorized by the FAA…. If § 1782(a) were construed to permit federal courts to provide discovery assistance in private foreign arbitrations, then litigants in foreign arbitrations would have access to much more expansive discovery than litigants in domestic arbitrations. It’s hard to conjure a rationale for giving parties to private foreign arbitrations such broad access to federal-court discovery assistance in the United States while precluding such discovery assistance for litigants in domestic arbitrations. In sum, what the text and context of § 1782(a) strongly suggest is confirmed by the principle of avoiding a collision with another statute: a ‘foreign or international tribunal’ within the meaning of § 1782(a) is a state-sponsored, public, or quasi-governmental tribunal.”

District of Delaware is on Board

Although the Third Circuit has not weighed in on this issue, two District Courts in the Circuit have said “no” to section 1782 discovery in private arbitration tribunals. See In re Ex Parte Application of Axion Holdings Cyprus Ltd., No. 20-00290 (MN) (D. Del. Sept. 18, 2020) (memo order), involving an arbitration that was filed with the London Court of International Arbitration. The other Opinion on this issue from the District of Delaware is In re EWE Gesspeicher GBMH, No. 19-MC-109-RGA (D. Del. Mar. 17, 2020), reported on in SAA 2020-14 (Apr. 15).

(ed: *Judge Coney Barrett was not part of the panel deciding the case. **Every time we cover the growing split, our editorial note queries if SCOTUS will eventually take up the gaping split on this issue. The answer remains: “Perhaps.” We covered in SAA 2020-13 (Apr. 8) the Fourth Circuit’s decision in Servotronics. It was widely reported that a Petition for Certiorari was coming, but so far -- nothing.)