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Freshfields Wins Groundbreaking Victory as 6th Circuit Holds That 1782 Discovery Is Available in Aid of Private Arbitrations

A team from Freshfields’ New York office, consisting of Linda H. Martin, David Y. Livshiz, and Paige von Mehren, has won a groundbreaking victory on behalf of our client in an action seeking discovery under 28 U.S.C. § 1782 (Section 1782). In a first of its kind decision, in Abdul Latif Jameel Transportation Company Limited v. FedEx Corporation, the Sixth Circuit Court of Appeals has held that Section 1782 discovery is available in aid of private international arbitrations, reversing the lower court’s decision to the contrary.

Section 1782 is a unique statute that allows for US-style discovery (i) if an applicant seeks documents or testimony, (ii) from a person or entity who “resides or is found” in the district where the application is brought, (iii) for use in a proceeding in a foreign or international tribunal.  It can be a powerful tool for international litigants, as it allows for potentially broader discovery than is typically available in most foreign proceedings.  For the past twenty years, US courts have wrestled with whether a private international arbitration tribunal is a qualifying “foreign or international tribunal” within the meaning of Section 1782, especially in light of the Supreme Court’s decision in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004).  The Sixth Circuit is the first circuit court to hold that Section 1782’s plain meaning covers private international arbitration tribunals, and the decision expressly rejects pre-Intel cases from the Second and Fifth Circuits that excluded private arbitrations from Section 1782’s scope.

This decision has wide reaching implications for parties to international arbitrations, as it could increase the likelihood that those litigants may access documents or benefit from other types of discovery (including depositions) in aid of those proceedings. If you have a non-US arbitration that may benefit from US-style discovery, we would be happy to discuss this important development and its broader implications.