In its Sept. 20, 2020, ruling in Servotronics v. Rolls-Royce, the Seventh Circuit has bucked a recent trend in the lower courts holding that parties to private international arbitrations can obtain court-based discovery via 28 U.S.C. §1782. Under Section 1782, enacted in 1964, a U.S. district court “‘may order a person residing or found in the district to give testimony or produce documents for use in a proceeding in a foreign or international tribunal … upon the application of any interested person.’”
Although both as a linguistic and historical matter, it may be difficult to view a private international arbitration panel as a “”foreign or international tribunal” for purposes of Section 1782, that was the holding of the courts in Abdul Latif Jameel Transp. Co. v. FedEx Corp. (In re Application to Obtain Discovery for Use in Foreign Proceedings), 939 F.3d 710, 723 (6th Cir. 2019; Servotronics v. Boeing Co., 2020 WL 1501954 (4th Cir. March 30, 2020). The Seventh Circuit now disagrees, reinforcing a circuit split (along with a recent Second Circuit decision) that may end up in the U.S. Supreme Court.
