For decades, §1782 of Title 28 of the United States Code was an esoteric statute that was used sparingly, if at all, and only by those in the know. But as cross-border litigation and arbitration becomes the new normal, §1782 discovery has become an area of increased activity for parties that understand that success in a cross-border dispute requires a global strategy, and for the courts that are asked to apply the statute to 21st century disputes. In light of §1782’s recent prominence, a number of court decisions have substantially reshaped the way that §1782 may be used in the future. Among those, the Sixth Circuit’s decision in Abdul Latif Jameel Transportation Company Limited v. FedEx Corporation, 939 F.3d 710 (6th Cir. 2019) (ALJ v. FedEx) is particularly notable for its impact on both litigation and arbitration practitioners. In ALJ v. FedEx, the Sixth Circuit rejected a pair of decisions from the Second and Fifth Circuits, and relied on the plain meaning of §1782 to conclude that private commercial arbitral tribunals are “foreign or international tribunals” within the scope of §1782.
While the ALJ v. FedEx decision has prompted concern in some corners that U.S.-style discovery will corrupt private international arbitration, the reality is much more nuanced. This decision opens the door for parties to international arbitrations to argue more forcefully for U.S.-style discovery, but it is hardly a guarantee that U.S. courts will automatically order discovery in aid of all private arbitrations. The real question, then, is what comes next. Not only are the Fourth and Seventh Circuits due to consider the same question that the Sixth Circuit considered in ALJ v. FedEx (see Servotronics v. Boeing Co., No. 18-2454 (4th Cir.); Servotronics v. Rolls-Royce, No. 19-1847 (7th Cir.)), but parties to international arbitrations and international arbitration agreements have significant power to shape whether §1782 discovery will be available, and to what degree, in their disputes.
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