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Fork-in-the-RoadThe U.S. Court of Appeals for the Sixth Circuit became the first court of appeals to hold that under 28 U.S.C. §1782, the federal statute authorizing discovery in an aid of a foreign proceeding, a district court can order discovery in aid of a private commercial arbitration seated abroad. The Sixth Circuit’s decision in Abdul Latif Jameel Transportation Co. v. FedEx, __ F.3d ___, 2019 U.S. App. LEXIS 28348 (6th Cir. Sept. 19, 2019), is in direct conflict with prior decisions from the Second and Fifth Circuits. The Sixth Circuit’s decision likely portends an increase in applications pursuant to §1782 seeking discovery in private foreign commercial arbitrations and raises the prospect of the Supreme Court having to resolve the circuit split.

The State of Law Prior to ‘Abdul Latif’. Section 1782 imposes three requirements that must be established before a federal district court may order discovery in aid of a foreign proceeding: (1) the party from whom discovery is sought must “reside[]” or be “found” within the district; (2) the discovery is for use before a “foreign or international tribunal”; and (3) the applicant seeking discovery must be an “interested person.” If the applicant seeking discovery satisfies the three statutory factors, the court may order discovery after evaluating certain discretionary factors identified by the Supreme Court in Intel v. Advanced Micro Devices, 542 U.S. 241, 264-65 (2004).

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