A recent U.S. Court of Appeals for the Sixth Circuit decision allowing parties in foreign private arbitrations to obtain discovery in federal district courts has created a circuit split, increasing the likelihood that the U.S. Supreme Court will revisit an issue that it last addressed in 2004.
Section 1782 of Title 28 of the U.S. Code allows federal courts to order individuals and companies to provide discovery for use in foreign and international tribunals. The statute was adopted in 1964 and was little used for most of its history. But with the rise of international commerce and the consequent need for processes to resolve international disputes, the statute has gained prominence as a way to obtain broad, U.S.-style discovery against U.S. companies. Until the Sixth Circuit’s decision on Sept. 19, the federal appellate courts had ruled Section 1782 could not be used to provide discovery for foreign commercial arbitrations.
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