Section 1782 (28 U.S.C. § 1782) was first enacted in 1948 to provide subject matter jurisdiction to a federal court in the United States for a party to obtain certain discovery in the United States district where the person or document or thing may be found, for use “in a foreign or international tribunal.” It was last amended in 1996 to add “including criminal investigations conducted before formal accusation” after tribunal. The question has been whether a “foreign or international tribunal” included arbitration proceedings. On March 30, 2020, the Fourth Circuit in Servotronics, Inc. v. The Boeing Company,954 F. 3d. 209 (4th Cir. 2020) decided that it does, further splitting authority around the country.

The facts are not complicated. A party in a private arbitration in the United Kingdom sought testimony from South Carolina residents for use in the arbitration and brought a proceeding under Section 1782 to obtain subpoenas against three current or former Boeing employees. Citing opinions from the Second and Fifth circuits that held arbitration proceedings were not a foreign or international tribunal, the trial court denied the applications. The Fourth Circuit panel reversed, contending these were decisions that preceded the Supreme Court’s decision in Intel Corp. v. Advanced Micro Devices, 542 U.S. 241 (2004), which had permitted a non-judicial body of the European Commission to qualify as a foreign or international tribunal. Intel has been read by advocates for inclusion as broadening the definition, and by opponents as saying it did not apply to private non-judicial bodies. Since Intel, the Second, Fifth and Eleventh circuits continue to exclude private international tribunals by not overturning their pre-Intel decisions. However, since Intel, many district courts have granted discovery under Section 1782 in aid of private arbitrations, and the area remains in contention.

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