On June 13, 2022, the United States Supreme Court in ZF Auto. US, Inc. v. Luxshare, Ltd., No. 21-401, 2022 WL 2111355 (U.S. June 13, 2022) resolved a disagreement among the circuits, and held that Section 1782 does not apply to private arbitration.

The statute, 28 U.S.C. § 1782, permits federal courts to assist foreign litigants and other interested parties in gathering evidence in the United States for use in a “foreign and international tribunal.” Various factors are considered by the court in granting or denying the application, which remains in its discretion. Courts have been split on whether or not this meant that the tribunal was a court or whether it applied to private arbitrations. Almost twenty years ago, the Supreme Court in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 249 (2004), cited legislative history to explain “that Congress introduced the word ‘tribunal’ to ensure that ‘assistance is not confined to proceedings before conventional courts,’” but extends also to “administrative and quasi-judicial proceedings.” Since then, courts have been divided over the application of the statute to purely private arbitration. However, the specific question of application to private arbitration was not resolved and continued to be debated.