Section 1782 Remains One of the Most Powerful Discovery Tools as Appellate Courts Uphold its Use in Aid of Private Commercial Arbitration

28 U.S.C. § 1782, known colloquially as “Section 1782,” is a federal statute that allows foreign litigants and interested persons to request judicial assistance from U.S. federal courts to obtain evidence for use in a proceeding in a foreign or international tribunal. Section 1782 is highly relevant to a wide array of legal practitioners, both within and outside the U.S., as federal courts have concluded that evidence obtained through Section 1782 may be used in civil, criminal, probate, bankruptcy, marital, administrative, and regulatory cases. In short, if your client is not using Section 1782 as part of its litigation strategy, there is a good chance that your client’s opponent is using it to your client’s disadvantage.

Section 1782 is an alternative to the slower, and oftentimes cumbersome, cross-border discovery mechanisms such as letters rogatory and diplomatic or consular channels, because it can be pursued directly by the litigant or interested party without the involvement of the foreign court or tribunal or of the governmental authorities making up the traditional channels. Section 1782 was enacted decades ago and was revised extensively in 1964, but its widespread use did not take off until after the U.S. Supreme Court’s 2004 ruling in Advanced Micro Devices, Inc. against Intel Corp., or “Intel” as the seminal decision is widely known. In the Intel case, the Supreme Court clarified the statutory requirements that an applicant has to satisfy to obtain evidence using Section 1782 as well as a number of discretionary factors courts should also consider. If the applicant is successful, it can obtain U.S.-style discovery from persons or entities located where the application is filed (in the form of site inspections, requests for production of documents, or deposition testimony under oath) for use in the foreign proceeding. Typical Section 1782 subpoena targets include businesses (including affiliated companies and subsidiaries), financial institutions, professionals such as lawyers and accountants, brokers, escrow agents, art galleries and auction houses, former employees, and many more. This incredibly powerful tool can also be pursued on an ex parte basis (at least initially) and does not require the applicant to prove that she has exhausted her domestic evidence gathering tools in the foreign case or, significantly, that the evidence will be admissible in the foreign proceeding.

One issue that has been contested since Intel was decided is whether Section 1782 can be used in support of a private commercial arbitration (as opposed to treaty-based arbitrations where the use of Section 1782 is clearly supported by the applicable case law). Recently, the Sixth Circuit and Fourth Circuit Courts of Appeals broke with the Second and Fifth Circuits and determined that interested parties may rely on Section 1782 to obtain evidence for use in a privately constituted international arbitration proceeding. In September 2019, the Sixth Circuit analyzed the definition and interpretation of the word “tribunal” at length (relying on the ordinary meaning of the word, several dictionary definitions, the use of the word in legal writing, and an examination of the statute’s text, context and structure) and held that the language of Section 1782 unambiguously “includes private commercial arbitral panels established pursuant to contract and having the authority to issue decisions and bind the parties.” Abdul Latif Jameel Transportation Co. Ltd. v. FedEx Corp., 939 F.3d 710, 723 (6th Cir. 2019). A few months later, the Fourth Circuit followed. In March 2020, the Fourth Circuit agreed that private arbitral tribunals are “foreign tribunals” within the meaning of Section 1782, and rejected a litany of policy arguments advanced by the respondent. Servotronics, Inc. v. Boeing Co., 954 F.3d 209 (4th Cir. 2020).

Although district court decisions have been deeply divided on the issue since Intel, there is now strong momentum gathering at the appellate level favoring the use of Section 1782 in aid of private commercial arbitration. For example, California district courts had uniformly followed the Second and Fifth Circuits in holding that an applicant may not obtain evidence through Section 1782 for use in a private commercial arbitration—until recently. In February 2020, a federal court in the Northern District of California adopted the reasoning and conclusion of the Sixth Circuit’s decision regarding Section 1782’s application to private international arbitration. HRC-Hainan Holding Company, LLC v. Yihan Hu, No. 19-mc-80277, 2020 WL 906719 (N.D. Cal. Feb. 25, 2020). That case is now on appeal, and the Ninth Circuit is positioned to rule on the issue.

In sum, the already powerful Section 1782 has seen its applicability bolstered by two of the highest courts in the U.S. indicating that Section 1782 will remain an indispensable tool in any international lawyer’s toolbox for the foreseeable future.

About the authors:

Arnie Lacayo (alacayo@sequorlaw.com) is a Shareholder and Cristina Vicens (cvicens@sequorlaw.com) is an Attorney at Sequor Law.  Lacayo and Vicens focus their practices on investigations, financial fraud and corruption-related asset recovery cases, as well as cross-border insolvency. Both Lacayo and Vicens have extensive experience with the Section 1782 statute, including in some of the most-cited cases in the U.S.

 

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