Section 1782 of the U.S. Code (28 U.S.C.§ 1782) is a very important discovery tool for litigants who are part of a legal proceeding outside the U.S. (particularly if access to discovery is restricted there). It allows a foreign litigant to make a request before a federal court to obtain evidence from a person within the district for “use in a foreign or international tribunal.”
Until recently, appellate courts interpreted the word “tribunal” restrictively by excluding private commercial arbitrations abroad. That is no longer the case. In Abdul Latif Jameel Transportation Company Ltd v. Fedex Corp., involving an application seeking evidence from a U.S.-based entity, the Sixth Circuit reversed a district court decision which had ruled that Section 1782 did not apply to a Dubai arbitration. In doing so, the Sixth Circuit found that the word “tribunal” encompasses privately contracted-for arbitral bodies. For some commentators, this ruling will negatively impact international arbitration by potentially placing a U.S.-based party at a strategic disadvantage (its foreign counterpart would not be subject to Section 1782) and by expanding discovery beyond what might have otherwise be available.
A month later, in In Re Del Valle Ruiz et al., the Second Circuit ruled that federal courts can order an entity to turn over documents located abroad. In that case, several investors intervened in various foreign proceedings to contest Santander’s acquisition of BPE for one euro. The investors then filed a Section 1782 application seeking evidence from a New York banking affiliate of Santander to be used in the foreign proceedings. The issue was whether Section 1782 could be used to reach documents stored overseas. The Second Circuit concluded that Section 1782 allows extraterritorial discovery “so long as the documents to be produced are within the subpoenaed party’s possession, custody, or control.” In so ruling, the Second Circuit joined the Eleventh Circuit and adopted its reasoning set forth in Sergeeva v. Tripleton Int’l Ltd. (2016) (Section 1782 authorizes discovery pursuant to the Federal Rules of Civil Procedure, which in turn authorize extraterritorial discovery under certain circumstances).