The U.S. District Court for the Northern District of California has permitted a party in an international commercial arbitration to take depositions and obtain documents from third parties for use in arbitration administered by the China International Economic and Trade Arbitration Commission (CIETAC) in Beijing. See HRC-Hainan Holding Co. v. Yihan Hu, Case No. 19-mc-80277-TSH, Order Re: Applicant’s Motion to Compel Section 1782(A) Discovery and Respondent’s Motion to Quash (N.D. Ca. Feb. 25, 2020). This decision sets the stage for the U.S. Court of Appeals for the Ninth Circuit to potentially consider U.S. law—and in particular 28 U.S. Code Section 1782—as it applies to discovery in private international commercial arbitration proceedings. The district’s court’s order is now on appeal.
Under Section 1782, parties involved in proceedings before “a foreign or international tribunal” may access tools of the U.S. discovery process, such as document requests and depositions, to gather evidence in the United States to use in a foreign proceeding. 28 U.S.C. 1782(a) provides: