On March 22, 2021, the U.S. Supreme Court granted certiorari in Servotronics v. Rolls-Royce PLC in order to resolve a circuit split on the question of whether 28 U.S.C. §1782 can be relied upon to obtain evidence for use in private arbitration proceedings seated outside of the United States. The U.S. Court of Appeals for the Second, Fifth and Seventh Circuits have held it cannot, the Fourth and Sixth Circuits that it can.
The genesis of this circuit split can be traced back to the Supreme Court’s decision in Intel v. Advanced Micro Devices, 542 U.S. 241 (2004), the only other time the court has considered §1782. Prior to Intel, it seemed settled, based on the Second Circuit’s decision in NBC v. Bear Stearns & Co., 165 F.3d 184 (2d Cir. 1999), and the Fifth Circuit’s in Kazakhstan v. Biedermann Int’l, 168 F.3d 880, 881-83 (5th Cir. 1999), that §1782 could not be used to obtain evidence for private arbitrations. While Intel itself did not involve the arbitration context, the late Justice Ruth Bader Ginsburg, who wrote the opinion of the court, cast some doubt on the decisions of the Second and Fifth Circuits when she quoted an article by the late Professor Hans Smit—a principal draftsman of the 1964 amendments to §1782—stating that the term “tribunal” in §1782 included “investigating magistrates, administrative and arbitral tribunals, and quasi-judicial agencies” (emphasis added).