In 1964, Congress revised the wording of 28 U.S.C. Section 1782. Section 1782 is titled "Assistance to foreign and international tribunals and to litigants before such tribunals." Prior to 1964, a district court could issue a discretionary discovery order for use "in any judicial proceeding pending in any court in a foreign country." After 1964, a district court could decide to order discovery to provide assistance "in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation." To obtain such assistance an "interested person" had to request that a district court order that "testimony" or a "statement be given" or that a "document or other thing be produced" by a person (individual or corporation) residing in or found within the district. The discovery order would prescribe the "practice and procedure" to be utilized, "which may be in whole or part the practice and procedure of the foreign country or the international tribunal."

Since the scope of discovery available in U.S. courts is far more expansive than that of most foreign jurisdictions, litigants involved in legal proceedings outside the U.S. have applied to American courts to obtain evidence in accordance with Section 1782(a). For many years, district courts and appellate courts disagreed as to: the scope of discovery available; who may file a 1782 request; at what stage in a foreign or international proceeding could a 1782 order be granted; whether the requested evidence had to be "discoverable" in the foreign jurisdiction; and the meaning of the term "tribunal."

The U.S. Court of Appeals for the Second and Fifth Circuits, respectively, were the first to address whether Section 1782 applied to private international arbitrations. Both circuits agreed that use of the word "tribunal" did not clearly exclude private arbitrations, but the application of the term intended by Congress was ambiguous. After considering the legislative history surrounding the statutory change in 1964, as well as policy considerations, both circuits concluded that "tribunal" as used in the statute included only "governmental or intergovernmental arbitral tribunals and conventional courts and other state sponsored adjudicatory bodies." See Republic of Kazakhstan v. Biedermann International, 168 F.3d 880 (5th Cir. 1999) (Biedermann); National Broadcasting v. Bear Stearns & Co., 165 F.3d 184 (2d Cir. 1999) (NBC).

In 2004, the Supreme Court sought to clarify the case law concerning application of Section 1782 (Intel v. Advanced Micro Devices, 542 U.S. 241). Advanced Micro Devices (AMD) had filed a complaint in Europe alleging that Intel was engaged in various kinds of antitrust activity. AMD applied for a 1782 order seeking documents produced in litigation against Intel in the United States. The district court denied the request. The Ninth Circuit reversed. The Supreme Court granted certiorari.

The court had to decide whether Section 1782 applied to a proceeding before a nonjudicial entity, namely, the Directorate-General for Competition (DG-Competition) of the Commission of the European Communities (the commission). The DG-Competition was the primary antitrust law enforcer of the European Union and the commission was the executive and administrative body with the authority to issue binding anti-trust decisions. The court also had to decide whether the requested discovery had to be permitted in the foreign jurisdiction since DG-Competition had rejected AMD's suggestion that they obtain the documents from the U.S. "discoverability" was another issue upon which the circuits had split.

The court decided that an "interested person" did not have to be a party to pending litigation; a 1782 request could be submitted prior to the initiation of formal proceedings outside the United States; a "tribunal" is any "first instance" regulatory or administrative "decision maker;" and the discovery materials sought in the United States did not have to be discoverable in the foreign proceeding. Since the regulatory commission acted as a first-instance decision-maker, the commission was a "foreign tribunal" within the meaning of Section 1782(a); AMD was an "interested person;" AMD could seek discovery aid during the investigative, pre-decisional point in a foreign decisional process; and discoverablity was not a Section 1782 requirement. In reaching their decision the court stressed that Congress understood that the change made in 1964 would provide the possibility of U.S. judicial assistance in connection with administrative and quasi-judicial proceedings abroad.

The court identified four discretionary factors to guide courts considering whether to grant a Section 1782(a) request: If the person from whom discovery is sought is a participant in the foreign proceeding there might not be as apparent a need for Section 1782(a) aid because the foreign tribunal can itself order the production of evidence; the court could consider the nature of the foreign tribunal, the character of the foreign proceedings and the receptivity of the foreign government or court or agency abroad to U.S. federal-court assistance; whether the request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States; if a request is unduly intrusive or burdensome it may be rejected or reduced in scope.

In dicta the court also cited with approval the statements of a professor who assisted in drafting the 1964 amendments that "the term tribunal … includes … administrative and arbitral tribunals" (Hans Smit, International Litigation Under the United States Code, 65 Colum. L.Rev. 1015 (1965). But did Smit's reference only apply to state-sponsored arbitration tribunals?

In Abdul Latif Jameel Transportation v. FedEx, No. 19-5313 (Sept. 19, 2019), the Sixth Circuit was asked in a case of first impression for the circuit to determine whether Section 1782 may be used to obtain discovery in the United States for use in a private commercial arbitration being conducted in a foreign country. The appellant, Abdul Latif Jameel (ALJ), sought discovery from FedEx in the United States for use in private arbitration pending in Dubai against FedEx International, a subsidiary of FedEx. The district court denied the Section 1782(a) application on the ground that the proceeding did not fall within the definition of a foreign or international "tribunal."

In a departure from the Fifth and Second Circuit decisions in Biedermann and NBC, supra, the Sixth Circuit concluded that the private arbitration panel was a "tribunal" within the scope of the phrase "foreign or international tribunal." Since the district court had concluded a private arbitration panel was not a "tribunal" within the meaning of Section 1782(a), the district court did not consider the four Intel factors. The Sixth Circuit declined to analyze whether the four factors had been met because relevant facts and circumstances were not fully presented in the appellate record. Accordingly, the Sixth Circuit reversed and remanded to the district court to consider those factors noting that a district court, after considering the four discretionary factors identified by the Supreme Court in Intel, may order discovery. Conceptually, this may include access to electronically stored information maintained in the United States, as well as depositions of officers and directors, for use in a private arbitration conducted overseas. The court dismissed the policy concerns advanced by FedEx as matters best addressed by Congress, not the courts. Acknowledging that 1782(a) provided broader discovery than is available to parties in domestic arbitration under the Federal Arbitration Act, the court noted that Intel—which was decided after NBC and Biedermann—rejected similar proportionality arguments about the breath of discovery assistance provided by Section 1782(a).

Until such time as the current split is resolved by the U.S. Supreme Court counsel needs to carefully consider the choice of where in the United States to make the application for assistance. Regarding venue, 28 U.S.C. Section 1782(a) states in part: "The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal …" A "person" includes a corporate entity and therefore ALJ applied in the U.S. District Court for the Western District of Tennessee, the federal district where FedEx is headquartered. Since there is currently a split in the circuits as to whether a private arbitration panel falls within the ambit of Section 1728(a), pending resolution by the U.S. Supreme Court, parties who seek discovery should consider whether the "district in which a person resides or is found" may be located in the Sixth Circuit, or a circuit which has not already adversely decided the issue (such as the Fifth and Second). However, parties who oppose such applications may seek to challenge venue if outside the Fifth and Second circuits. Any application made should be narrowly tailored and address the four Intel factors.

Jean Baker is editor of the American Bar Association section of litigation ADR committee's e-newsletter. She has authored numerous articles concerning the use of ADR in a variety of contexts. During her career she has served as a mediator and as an adjunct law school professor teaching a variety of ADR-related courses.

Ernest J. Ehling, of counsel at Reger Rizzo & Darnall, concentrates his practice in serving the needs of high net worth individuals in the areas of tax and estate planning, estate and trust administration, international tax and estate planning, business succession planning, asset protection planning, and estate and trust litigation. He is also chair-elect of the New Jersey State Bar Association, dispute resolution section.