The U.S. allows parties to non-U.S. litigation proceedings to obtain documents and witness testimony from sources within the U.S., even if such evidence is unobtainable through the home forum’s own discovery procedures. Types of evidence available include International Wire Transaction Records (U.S. Dollar wires typically transit through the U.S.), emails, correspondence, phone and travel records, accounting, banking, credit card and corporate documents such as shareholder and board meeting records. However, U.S. courts remain split on whether 28 U.S.C. §1782 discovery is permissible for use in private international arbitration proceedings – making it available in some parts of the U.S., but not others. For example, Servotronics, Inc. was permitted in the Fourth Circuit, but denied in the Seventh Circuit, §1782 discovery against Boeing for use in the same UK arbitration proceeding related to a Rolls-Royce jet engine that caught file and damaged a new Boeing 787 Dreamliner. Eventually, the United States Supreme Court will resolve the split among the circuits. However, until then, §1782 discovery remains available for use in private international arbitration proceedings in a limited number of U.S. jurisdictions.
I. The Second, Fifth and Seventh Circuits Do Not Permit §1782 Discovery For Private International Arbitration
The Second Circuit has reinforced its position that 28 U.S.C. §1782 may not be utilized to obtain evidence for use in private international arbitrations outside the United States. On July 8, 2020 in Hanwei Guo v. Deutsche Bank Sec., 965 F.3d 96 (2d Cir. 2020), it affirmed the Southern District of New York court’s determination that a China International Economic and Trade Arbitration Commission (“CIETAC”) arbitration was best categorized as private commercial arbitration, leaving §1782 discovery unavailable. The court followed its prior decision in National Broadcasting Co., Inc. v. Bear Stearns & Co., Inc., 165 F.3d 184 (2d Cir. 1999) (“NBC”), in which it held that the statute’s legislative history, inclusion of “foreign or international tribunal” into the statutory text, and policy considerations of preserving the efficiency and cost-effectiveness of private arbitration, establish §1782 does not extend to private international arbitration.
The Second Circuit noted NBC was not overruled by Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 124 S. Ct. 2466 (2004), because whether a private arbitral tribunal was a “tribunal” under §1782, was not under consideration in Intel. The court noted the recent Fourth Circuit and Sixth Circuit decisions that held §1782 does encompass private international arbitration, and opined that neither decision “rested on the notion that Intel undermined NBC or otherwise required a reading of §1782 that encompasse[d] private arbitration,” but that they came to their holdings based upon their statutory interpretation of §1782, not based on the precedent of Intel. However, the Second Circuit’s ruling in Hanwei Guo only applies to private international arbitration typically based upon contract provisions found in commercial agreements. It does not apply to treaty-based tribunals or state sponsored arbitration proceedings. See In re Ex Parte Warren, 2020 U.S. Dist. LEXIS 195537 (S.D.N.Y. Oct. 21, 2020), permitting §1782 discovery for use in international arbitration against Mexico under the North American Free Trade Agreement (“NAFTA”) and Arbitration Rules of the United Nations Commission on International Trade Law (“UNCITRAL”).
The Fifth Circuit in Republic of Kazakhstan v. Biedermann Int’l, 168 F.3d 880 (5th Cir. 1999) held that only “state sponsored” arbitrations fall within the scope of §1782, but not private international arbitrations. This was based upon its analysis of the legislative history which revealed no contemporaneous evidence that Congress contemplated extending §1782 to the then novel arena of international commercial arbitration and upon references in the United States Code to “arbitral tribunals” which almost uniformly concern an adjunct of a foreign government or international agency.
Recently, on September 22, 2020, the Seventh Circuit in Servotronics, Inc. v. Rolls-Royce PLC, 975 F.3d 689 (7th Cir. 2020), held a “foreign or international tribunal” within the meaning of §1782(a) is a state-sponsored, public, or quasi-governmental tribunal, not private foreign arbitration. The court determined the phrase “foreign or international tribunal” as used in this statutory scheme means state-sponsored tribunals and does not include private arbitration panels and avoids collision with the Federal Arbitration Act. The court affirmed the district court’s denial of Servotronics’ application for §1782 discovery for use in binding arbitration in Birmingham, England, under the rules of the Chartered Institute of Arbiters (“CIArb”).
II. The Fourth and Sixth Circuits Permit §1782 For Private International Arbitration
On March 30, 2020, the Fourth Circuit in Servotronics, Inc. v. Boeing Co., 954 F.3d 209, 210 (4th Cir. 2020) held that the CIArb, a private arbitration panel convened in England, is a “foreign or international tribunal” under §1782(a) and, therefore, the district court had authority to permit discovery of Boeing employees in South Carolina in connection with that private arbitration. The court rejected the argument that the term “foreign or international tribunal,” as found in §1782, does not encompass a private arbitral panel convened on the basis of the parties’ agreement, because the “current version of the statute, as amended in 1964, thus manifests Congress’ policy to increase international cooperation by providing U.S. assistance in resolving disputes before not only foreign courts but before all foreign and international tribunals.”
On September 19, 2019, the Sixth Circuit in Abdul Latif Jameel Transp. Co. v. FedEx Corp., 939 F.3d 710 (6th Cir. 2019), reversed a district court’s denial of an application by a Saudi corporation to take discovery from U.S. based FedEx Corporation for use in an arbitration proceeding in Dubai, under the rules of the Dubai International Financial Centre-London Court of International Arbitration (“DIFC-LCIA Arbitration”). The Sixth Circuit determined that the DIFC-LCIA is a “Foreign or International Tribunal” for which §1782 discovery may be permitted, because the “statutory language provides a clear answer … the text, context, and structure of § 1782(a) provide no reason to doubt that the word ‘tribunal’ includes private commercial arbitral panels established pursuant to contract and having the authority to issue decisions that bind the parties.
III. Interesting District Court Decisions From Undecided Circuit
A. The Third Circuit
In In re Storag Etzel GmbH, 2020 U.S. Dist. LEXIS 63940 (D. Del. Apr. 13, 2020), the United States District Court for the District of Delaware held the term “tribunal” in §1782(a) does not encompass private arbitral bodies, because it is reasonable to conclude that Congress understood when it adopted the Rules Commission’s revisions to §1782(a), that those revisions adding “tribunal” to §1782’s text, extended only to courts and government agencies, not to private arbitral bodies. See also In re Axion Holding Cyprus Ltd., 2020 U.S. Dist. LEXIS 171293 (D. Del. Sep. 18, 2020), denying discovery for use before the LCIA.
B. The Ninth Circuit
In HRC-Hainan Holding Co., LLC v. Yihan Hu, 2020 U.S. Dist. LEXIS 32125 (N.D. Cal. Feb. 25, 2020), the United States Court for the Northern District of California, which encompasses Silicon Valley, authorized Chinese and Delaware registered companies to take discovery for use in private arbitration before the China International Economic and Trade Arbitration Commission (“CIETAC”) from three persons, three California registered LLCs and Wells Fargo bank, all found within the Northern District of California. Significant business and asset related documents were ordered to be produced and the managers of the three LLCs were ordered to appear for deposition. The California district court agreed with the Sixth Circuit that the ordinary meaning of “tribunal” elicits the conclusion that §1782(a) applies to private arbitral tribunals. Looking to the legislative history, the court did not find any clear signal that Congress intended to exclude private arbitral tribunals from “foreign and international tribunals.” This case is currently on appeal to the Ninth Circuit with briefing to be completed by November 24, 2020. See HRC-Hainan Holding Co., LLC v. Yihan Hu (In re HRC-Hainan Holding Co., LLC), 2020 U.S. App. LEXIS 33250 (9th Cir. Oct. 21, 2020).
C. The Eleventh Circuit
In In re Application of Roz Trading Ltd., 469 F. Supp. 2d 1221 (N.D. Ga. 2006), the United States District Court for the Northern District of Georgia opined that, in light of the Intel decision, an international commercial arbitral panel located in Austria was a tribunal within the meaning of §1782, because it acted as a first-instance decision maker and issued decisions both responsive to a complaint and reviewable in court. The United States District Court for the Southern District of Florida in In re Pinchuk, 2014 U.S. Dist. LEXIS 59988 (S.D. Fla. Apr. 30, 2014) permitted §1782 discovery for use before arbitration panels which qualify as proceedings before a foreign tribunal under the “functional approach” framework set forth by the Eleventh Circuit in Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 685 F.3d 987 (11th Cir. 2012), which was superseded by Consorcio Ecuatoriano de Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc., 747 F.3d 1262, 1267 (11th Cir. 2014), in which the Eleventh Circuit “did not have to reach the question of whether the pending arbitration between JASE and CONECEL was a proceeding in a foreign tribunal under the statute.” See also In re Winning (HK) Shipping Co., 2010 U.S. Dist. LEXIS 54290 (S.D. Fla. Apr. 30, 2010), the United States District Court for the Southern District of Florida found §1782 permissible, because that private maritime arbitration was subject to judicial review on appeal to the English courts pursuant to the U.K.’s Arbitration Act of 1966.
Section 1782 is an increasingly important mechanism for obtaining evidence to prove or defend against foreign lawsuits, and, with continued globalization, its importance and utility will only grow.
Thomas C. Sullivan is an attorney in the Philadelphia office of Marks & Sokolov LLC. Mr. Sullivan represents Western, Russian and Ukrainian clients in complex commercial disputes including civil RICO, securities fraud, Foreign Corrupt Practices Act, Convention on the International Sale of Goods and ICC Arbitration matters. He has litigated numerous Section 1782 discovery matters throughout the United States and was recently published in Obtaining U.S. Discovery For Use In Non-U.S. Tribunals Pursuant To 28 U.S.C. § 1782 (Chapter 7), Juris Publishing, LLC, 2020.
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