United States: Cross-Border Disputes: US Sixth Circuit Court Of Appeals Rules That 28 U.S.C. § 1782 May Be Used To Obtain US Discovery For Non-US Private Arbitrations

Title 28, US Code, Section 1782 authorizes an interested person to petition a US federal district court where any person "resides or is found" for an order directing such person to provide documents or testimony for use "in a proceeding in a foreign or international tribunal." 28 U.S.C. § 1782(a).

In In re Application to Obtain Discovery for Use in Foreign Proceedings, No. 19-5315, 2019 WL 4509287 (6th Cir. Sept. 19, 2019), the US Court of Appeals for the Sixth Circuit was called upon to decide if Section 1782 permits US-style discovery for use in a non-US private arbitration (in the case at hand, a Dubai arbitration under the DIFC-LCIA Arbitration Rules).

In doing so, the Sixth Circuit became the first federal appellate court to depart from the interpretation of Section 1782 adopted by the Second and Fifth Circuits.  In contrast to its sister Circuits, a unanimous three-judge panel of the Sixth Circuit held that the word "tribunal" in the relevant clause of Section 1782 includes private arbitrations.

This decision could make it easier for parties engaged in non-US arbitrations to obtain discovery from US entities, particularly those that fall within the Sixth Circuit's jurisdictional reach.

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