Freshfields wins ground-breaking victory as 6th Circuit holds that 1782 discovery is available in aid of private arbitrations
Freshfields Bruckhaus Deringer LLP (‘Freshfields’) has secured a victory on behalf of Abdul Latif Jameel Transportation Co. in an action seeking discovery under 28 U.S.C 1782 (‘Section 1782’), in the Abdul Latif Jameel Transportation Company Limited v. FedEx Corporation litigation. In a first of its kind decision, the Sixth Circuit Court of Appeals has held that Section 1782 discovery is available in aid of private international arbitrations, confirming prior rulings at the lower courts. The New York-based team consisted of partner Linda H. Martin, counsel David Y. Livshiz, and associate Paige von Mehren.
“This ground-breaking ruling has the potential for wide-reaching implications for parties to international arbitrations,” said Livshiz. “Although a grant of Section 1782 discovery is always a matter of the court’s discretion, this decision may assist litigants before foreign arbitration tribunals who seek to access documents or benefit from other types of discovery - including depositions - in aid of those proceedings.”
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 two decades, 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 provides parties seeking 1782 discovery in aid of private arbitration a new argument which will greatly affect how such disputes are litigated in the future,” said Martin.
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