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US Fourth Circuit Holds That 1782 Discovery Is Available in Aid of Private Arbitrations, Following the Sixth Circuit’s Lead

Just over six months after Freshfields won a groundbreaking victory in Abdul Latif Jameel Transportation Co. Ltd. v. FedEx Corp., 939 F.3d 710 (6th Cir. 2019) (ALJ)—which was the first time an appellate court held unequivocally that discovery under 28 U.S.C. § 1782 (Section 1782) is available in aid of private commercial arbitration—another Circuit court has followed suit. On March 30, 2020, the United States Court of Appeals for the Fourth Circuit issued its ruling in Servotronics Inc. v. Boeing Company, No. 18-02454. The Fourth Circuit held that an arbitral tribunal in the United Kingdom operating under the rules of the Chartered Institute of Arbitrators is a “foreign tribunal” for purposes of Section 1782. The Circuit Court thus reversed the District Court’s order denying Section 1782 discovery in aid of that arbitration, and remanded the case for a determination as to the extent of the permissible discovery in this case.

Section 1782 provides that a US district court may, on the request of an “interested party,” order a person in its district “to give his testimony or statement or to produce a document or other thing for use in” a proceeding before a “foreign or international tribunal.” In reaching its decision that the arbitral tribunal in question was a “foreign tribunal,” the Fourth Circuit relied on the plain text of the statute, and emphasized Congress’ stated purpose of increasing international cooperation by providing US assistance in resolving disputes before all foreign and international tribunals. The Fourth Circuit rejected Boeing’s argument that the term “tribunal,” as used in Section 1782, only refers to an entity that exercises “government-conferred authority.” In any event, the Court held that arbitration is a product of government-conferred authority in both the United States, under the Federal Arbitration Act, and in the United Kingdom, under its Arbitration Act of 1996.

Finally, the Court addressed the policy concern that applying Section 1782 to private commercial arbitration would lead to a drastic increase in cost and time spent in those proceedings. In particular, the Court stressed the limited scope of Section 1782, and the supervisory role of the US district courts in controlling any discovery under the statute.

Since the Supreme Court’s decision in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) (Intel), there has been a clear trend in district courts towards granting Section 1782 discovery in aid of private arbitration proceedings, rejecting pre-Intel precedent from the Second and Fifth Circuits that excluded private arbitrations from Section 1782’s scope. As appellate courts appear to be increasingly following that trend, it is becoming more likely that parties to international arbitrations may access documents or other evidence in aid of those proceedings with the assistance of US courts. However, this ruling does not mean that Section 1782 discovery will always be ordered in aid of private arbitrations. This dispute, and others like it, instead will likely turn on whether district courts are willing to exercise their discretion to grant all or a subset of the requested discovery—a case-specific inquiry that can lead to any number of results.

Please contact any member of our US Commercial Disputes team if you have any questions or would like to discuss any of these points.