Future of US Discovery in International Arbitration

BACKGROUND

Section 1782 of Title 28 of the United States Code is a powerful tool that allows foreign litigants to use US-style discovery to obtain evidence that in many instances is unavailable to them in their home forum. Indeed, §1782 allows a US district court to order a person who ‘resides or is found’ in its jurisdiction to provide document discovery or deposition ‘for use in a proceeding in a foreign or international tribunal’. The use of this section has grown over the years.

There had been a circuit split on the scope and reach of the section with the US Court of Appeals for the Second, Fifth, and Seventh Circuits limiting §1782’s application to proceedings only before governmental or quasi-governmental bodies, versus the Sixth and Fourth Circuits permitting the statute to extend to private commercial arbitral tribunals. This was due in part to the Supreme Court´s having left the issue open in Intel Corp. v. Advanced Micro Devices, Inc., 542 US 241 (2004) (hereinafter Intel), where the Court considered that §1782(a) authorized discovery in connection with a proceeding pending before the European Commission, which it held to be a foreign tribunal.

By Peter Nahmias