United States: In A Divergence From Other US Federal Circuits, The US Sixth Circuit Court Of Appeals Rules That 28 U.S.C. § 1782 May Permit US Discovery For Use In Non-US Private Arbitrations

Last Updated: October 14 2019
Article by Charles E. Harris, II, B. Ted Howes, Kwadwo Sarkodie and Daniel Hart

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 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.1 In contrast to its sister Circuits, a unanimous threejudge 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.2

A. Background

The underlying dispute arose under two contracts between Abdul Latif Jameel Transportation Company ("ALJ"), a Saudi Arabian company, and FedEx International ("FedEx Int'l"), a subsidiary of FedEx Corporation ("FedEx"). FedEx Int'l commenced the arbitration at issue under the rules of the Dubai International Financial Centre-London Court of International Arbitration ("DIFC-LCIA"). In May 2018, ALJ filed an application in a federal district court in Tennessee, seeking discovery from FedEx under Section 1782, in aid of the DIFC-LCIA arbitration. The district court denied ALJ's application, holding that the phrase "foreign or international tribunal" in Section 1782 did not cover that arbitration. ALJ filed an expedited appeal in the Sixth Circuit and, for the reasons discussed below, the appellate court reversed the district court ruling.

B. What is a Section 1782 application?

Under Section 1782, a party can apply to a federal district court for an order directing a person or entity that "resides or is found" in that district to produce evidence for use in proceedings outside of the US. Such an application, which can be made against first or third parties, may be used to obtain evidence that might not necessarily be available via the disclosure process in the underlying non-US arbitration or court proceedings. The relevant portion of Section 1782 reads:

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.... The order may be made ... upon the application of any interested person.

28 U.S.C. § 1782(a). In the decision at issue, the key question was whether a privately contracted-for commercial arbitration (in that instance, the DIFCLCIA arbitration) fell within the definition of a "foreign or international tribunal."

C. The Sixth Circuit's decision


The Sixth Circuit applied basic statutory construction principles to determine whether the word "tribunal" in the phrase "foreign or international tribunal" in Section 1782 includes private arbitration. In particular, it noted that "[i]n determining the meaning of a statutory provision," courts should "look first to its language, giving the words used their ordinary meaning." In re Application, 2019 WL 4509287, at *4 (quoting Artis v. Dist. of Columbia, 138 S. Ct. 594, 603 (2018))

The court first considered dictionary definitions of "tribunal" to establish an ordinary meaning. While some dictionaries had definitions "broad enough to include private arbitration," others contained "narrower definitions that seem to exclude such proceedings." Id. at *6 (citing, e.g., compare Webster's Third New Int'l Dictionary (1966) (defining "tribunal" as "a person or body of persons having authority to hear and decide disputes so as to bind the disputants"), with Ballentine's Law Dictionary (3d ed. 1969) (defining "tribunal" as "[t]he seat or bench for the judge or judges of a court")).

Because these definitions were not determinative, the court then considered the use of "tribunal" by lawyers and judges. It noted that a respected treatise used the word "tribunal" to describe private arbitration as early as 1853. Furthermore, a myriad of US state and federal courts, including the Supreme Court, used "tribunal" throughout the 19th and 20th centuries to refer to private arbitration. For example, a New Jersey state court described arbitration as "a substitution, by consent of the parties, of another tribunal for the tribunal provided by the ordinary process of law." Id. at * 6 (quoting E. Eng'g Co. v. Ocean City, 167 A. 522, 523 (N.J. 1933)). Also, in describing an issue it was called on to decide, the Supreme Court said that the operative question was "whether a judicial rather than an arbitration tribunal shall hear and determine [an] accounting controversy." Id. at *7 (quoting Baltimore Contractors v. Bodinger, 348 U.S. 176, 185 (1955)).

The Sixth Circuit was persuaded by the expansive dictionary definitions and longstanding usage of "tribunal" that the word's ordinary meaning encompassed private arbitrations. However it still needed to be satisfied that this interpretation was not at odds with the text, context, and structure of Section 1782.

To that end, the court considered two uses of "tribunal" in the Title 28 (i.e., the portion of the US Code that governs the federal judicial system). First, a sentence in Section 1782 provides that a discovery order issued under that section may follow the "practice and procedure of the foreign country or the international tribunal" for collecting evidence. Id. at *8 (quoting 28 U.S.C. § 1782(a)). Second, Section 1781 addresses the transmittal of "a letter rogatory issued, or request made, by a foreign or international tribunal" to a "tribunal, officer, or agency" in the US. Id. (quoting 28 U.S.C. § 1781)). The Sixth Circuit concluded that neither use of "tribunal" demanded a reading of Section 1782 that would exclude private arbitration. It explained that the relevant language of Section 1782 is permissive and does not limit a "foreign or international tribunal" to "a governmental entity of a country that has prescribed" policies and procedures for discovery. As for Section 1781, the court said "this section does not indicate that the word 'tribunal' in the statute refers only to judicial or other public entities" given that a "private arbitral panel can make a request for evidence." Id.

The court held that it "need look no further to hold" that the international arbitration at issue was a "foreign or international tribunal." Id.


1 The Supreme Court is the highest court in the US federal court system. Thirteen appellate courts, "Courts of Appeals," sit below the Supreme Court, and there are 94 federal judicial districts organized into 12 regional Circuits, each of which has a Court of Appeals. All courts are bound by the decisions of the Supreme Court. However, if the Supreme Court has not decided an issue, the federal district courts in each Circuit are bound by the judgments of the applicable Court of Appeals for that Circuit. The Courts of Appeals are free, however, to diverge from one another.

2 The states within the Sixth Circuit's jurisdiction are Kentucky, Michigan, Ohio and Tennessee.

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