Regular readers of this column will know that §1782 is a topic we have followed closely for many years. The Supreme Court has issued only two decisions on §1782. In today’s column, we discuss the second of those two decisions, ZF Automotive US v. Luxshare, Ltd., No. 21-401, issued on June 13, 2022. This decision resolved a Circuit split that can be traced to the court’s first §1782 case (18 years earlier), Intel v. Advanced Micro Devices, 542 U.S. 241 (2004). The Supreme Court has now made clear that, with narrow exceptions, §1782 discovery is not available in aid of international arbitration.

Background of the Statute

First, some background. Section 1782 authorizes a federal district court to order the production of documents, as well as depositions of witnesses, in aid of foreign proceedings. The §1782 application is typically initiated through an ex parte application and does not require that the foreign proceeding even be pending at the time of the application (as long as it is in “reasonable contemplation”). Section 1782 authorizes a district court to grant a petition for judicial assistance if three statutory requirements are met: (1) the request for discovery is made “by a foreign or international tribunal” or “any interested person;” (2) the discovery requested is “for use in a proceeding in a foreign or international tribunal”; and (3) the person from whom the discovery is sought resides, or is found, in the district of the district court where the request has been made.

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