By George H. Friedman, SAA Publisher & Editor-in-Chief
As we’ve been speculating for quite some time, the Supreme Court is being asked to resolve a major split on whether 28 USC Section 1782 provides for discovery in aid of private, foreign, commercial arbitration or only covers cases administered by governmental arbitration forums
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 discovery order in aid of arbitration. 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 or No,” depending on the Circuit. Here’s the split as of today: the Second, Fifth, Seventh, and two Third Circuit District Courts hold that section 1782 covers only governmental arbitration forums. The Fourth and Sixth Circuits extend section 1782’s reach to private arbitration organizations.
The Split in a Nutshell: Same Arbitration 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. A more recent entry in the “no” camp was the Seventh Circuit, which in Servotronics, Inc. v. Rolls-Royce PLC, No. 19-1847, 2020 WL 5640466 (Sept. 22, 2020) – a dispute arising out of the same arbitration – held that section 1782 does not extend to private international commercial arbitration. As described in SAA 2020-37 (Oct. 7), the District Court barred Servotronics from obtaining discovery documents located in Illinois for use in the same private arbitration pending in London, and the Seventh Circuit (ed: then-Judge Amy Coney Barrett was not on the Panel deciding the case) affirmed unanimously. Among the Court’s rationales was 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.”
A Split Worthy of Review?
Every time we’ve covered this growing split, our editorial comment queried if SCOTUS would eventually be asked to take up this issue. The answer is now “yes.” Servotronics on December 7 Petitioned the Court for Certiorari in the Seventh Circuit case, Servotronics, Inc. v. Rolls-Royce PLC and the Boeing Company, No. 20-794. The question presented: “Whether the discretion granted to district courts in 28 U.S.C. §1782(a) to render assistance in gathering evidence for use in ‘a foreign or international tribunal’ encompasses private commercial arbitral tribunals, as the Fourth and Sixth Circuits have held, or excludes such tribunals without expressing an exclusionary intent, as the Second, Fifth, and, in the case below, the Seventh Circuit, have held.”
(ed: We suspect and hope SCOTUS will grant Cert., given the significant Circuit Court split and the frequency with which the issue arises.)