Collection of Evidence in the U.S. Pursuant to 28 U.S.C. Section 1782 for Use in Foreign Private Arbitrations

Mainbrace | June 2017 (No. 3)

W. Cameron Beard and Lauren B. Wilgus

Critical evidence, needed for the resolution of a dispute abroad, may be located in the United States. A key witness may reside in the United States, or important financial or other documentary evidence may be found only in this country. As we have discussed in previous articles,1 section 1782 of the United States Code (“section 1782”) offers a powerful tool for the collection of evidence in the United States for use in foreign legal proceedings. The statute allows either a foreign tribunal or a party to foreign proceedings to apply directly to a U.S. federal court for an order directing that a witness be examined or that evidence be disclosed for purposes of a foreign legal proceeding. The procedure is highly efficient; by taking advantage of section 1782, foreign litigants can often avoid and bypass the unwieldy and time-consuming requirements of letters rogatory or requests for evidence collection under the Hague Convention on the Collection of Evidence Abroad in Civil or Commercial Matters.

The value of section 1782 has been conclusively demonstrated in connection with foreign court proceedings or similar judicial or quasi-judicial proceedings. As we have reported previously, however, an important open question is whether section 1782 may be used to collect evidence in the United States for foreign private arbitrations to which a governmental entity is not a party. Recent decisions by the federal courts in Manhattan and elsewhere suggest that the law on this point remains unsettled. These decisions, however, also suggest that it may be possible, in certain federal districts or before certain federal judges, to obtain evidence for use in a foreign private arbitration.

Decisions of the United States Courts of Appeals

In January 2014, the United States Court of Appeals for the Eleventh Circuit withdrew an earlier opinion, issued in 2012, which held that foreign private arbitral bodies are “foreign tribunals” in connection with proceedings before which evidence may be collected in the United States pursuant to section 1782.2 Thus, the only standing appellate rulings on the issue are 1999 decisions from the Courts of Appeals for the Fifth and Second Circuits, which do not recognize foreign private arbitral bodies as foreign tribunals for section 1782 purposes.3

District Court Decisions

Notwithstanding the referenced appellate court decisions, a number of federal district level courts have allowed use of section 1782 to collect evidence for use in purely private foreign arbitrations. Indeed, in November 2016, a judge of the United States District Court for the Southern District of New York held that section 1782 could be used to collect evidence for use in proceedings before the London Maritime Arbitrators Association  (“LMAA”).4 And, in 2014 and 2010, two other district judges, in New Jersey and Florida, respectively, reached the same conclusion, finding the use of section 1782 permissible in connection
with LMAA arbitrations.5

In his recent decision, the New York district judge found that he was not bound by the above-referenced Second Circuit precedent from 1999, because a subsequently issued ruling of the United States Supreme Court from 2004, while not addressing the issue directly, could be read to support the proposition that a foreign arbitral body is a “foreign tribunal” for purposes

of section 1782. Other very recent decisions from across the United States have reached the opposite conclusion,6 however, and the issue remains contentious and unsettled—even in the Southern District of New York where there does not seem to be unanimity of opinion among the district judges who sit there.7 The Supreme Court’s 2004 Intel Decision In 2004, in Intel Corp. v. Advanced Micro Devices, Inc.,8 the U.S. Supreme Court clarified most of the rules applicable with respect to section 1782. Most significant among the court’s rulings was that there is no requirement that the evidence sought in the United States pursuant to section 1782 be “discoverable” under the laws of the forum country.9 In other words, for purposes of most foreign proceedings, a foreign litigant may be able to obtain a broader range of evidence through section 1782 proceedings in the United States than might generally be obtained under the laws of the jurisdiction where the dispute is pending. For example, the pretrial deposition of a witness might be taken in the United States pursuant to section 1782, even if such depositions are not permitted under the laws of the forum state. Similarly, a foreign litigant might be able to seek production pursuant to section 1782 of broad classes of documents, notwithstanding that the forum state’s laws might require a greater degree of specificity with respect to the documents requested.

The court also held that foreign legal proceedings need not actually be pending at the time of the section 1782 application, but need only be within reasonable contemplation.10 The court identified three statutory requirements for section 1782 relief, specifically: 1) the request for evidence must be made by a foreign or international tribunal or by any interested party; 2) the person to be examined or the evidence to be disclosed must be found within the district in which the federal district court sits; and, most important for the current discussion, 3) the evidence must be “for use in a proceeding in a foreign or international tribunal.”11 However, the court also made it clear that, even if the three requirements are met, the grant of section 1782 relief remains within the district court’s discretion.

In Intel, the Supreme Court did not address the question of whether a foreign arbitral body is a “foreign or international tribunal” for purposes of the final statutory requirement noted above. Rather, the question in that case was whether the Directorate-General of Competition of the European Communities (“DGC”), an antitrust enforcement unit of the European Union, qualified as such a tribunal. In finding the DGC to be a foreign tribunal within the meaning of section 1782, the court stressed that a DGC proceeding “leads to a dispositive ruling, i.e., a final administrative action both responsive to the complaint and reviewable in court.”12 Since 2004, appellate and district courts have struggled to determine whether, applying such criteria, foreign arbitral panels may be considered foreign or international tribunals within the meaning of section 1782.

Foreign Private Arbitrations and Section 1782

Many courts, both prior and subsequent to the Intel decision, have made a distinction between foreign private arbitrations on the one hand and arbitrations conducted pursuant to international treaty obligations or under international arbitration regimes on the other hand, finding section 1782 relief to be available with respect to the latter, whether or not also available with respect to the former. As noted above, however, a number of courts have taken the position that even private arbitrations not conducted pursuant to international treaty obligations or under international arbitration regimes fall within the meaning of “foreign tribunal” for purposes of section 1782. Other courts have simply flagged the issue, leaving its resolution for another day.

Various courts have focused on the availability of judicial review, one of the factors touched upon by the Supreme Court in the Intel decision, as an important feature rendering an arbitral body a “foreign tribunal” within the meaning of the statute. Thus, where the parties to a foreign private arbitration have been able to demonstrate that a contractual right or statutory scheme permits judicial review of an arbitration award, these courts have seemed willing to deem the arbitral body a foreign tribunal and thus to allow section 1782 discovery to proceed. The availability of judicial review under the English Arbitration Act, for example, seems to be a significant factor underlying those decisions, referenced above, which have found that arbitral panels constituted under the LMAA are foreign tribunals under section 1782.

One corollary to an approach that stresses the importance of judicial review as a factor rendering an arbitral body a foreign tribunal for purposes of the statute is that, where it can be demonstrated that there is no opportunity for judicial review, section 1782 relief may well be denied. Thus, if an arbitration clause in a contract specifically prohibits the parties from seeking judicial review of any arbitration award, section 1782 relief may be unavailable—even in jurisdictions otherwise reading the statute broadly to include foreign private arbitrations. A threshold question in any specific case should therefore be whether there is a prohibition against judicial review in the governing contractual arbitration clause.

It remains an open question of whether the courts that have focused on the availability of judicial review as the determinative factor rendering private arbitral bodies “foreign tribunals” for purposes of section 1782 are correct in their analysis. Stated differently, it is not a foregone conclusion that the U.S. Supreme Court, if faced with the question, would deem foreign private arbitral bodies to be “foreign tribunals.” In Intel, the Supreme Court was addressing the status of a quasi-governmental administrative body, the decisions of which would appear to have been subject to full judicial review—in essence, to appellate review on all questions of law and fact. The scope of judicial review of arbitral decisions, however, is often quite strictly circumscribed by law, as it is in the United States and other jurisdictions—and indeed even under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Judicial involvement in the arbitration under such statutory schemes may therefore be limited to oversight of the arbitral process rather than the kind of judicial review the U.S. Supreme Court had in mind when it stressed such review as a characteristic feature of a “foreign tribunal” for purposes of section 1782. We take no position on the issue, but merely note, again, that the Supreme Court could ultimately rule either way.

The U.S. Supreme Court may also find that other considerations militate against a finding that foreign arbitral bodies are “foreign tribunals.” For example, certain courts, including the U.S. Courts of Appeal for the Fifth and Second Circuits, have noted the anomaly that would arise if, through the use of section 1782, a participant in a foreign arbitration could obtain broader discovery than U.S. law would allow to a participant to a purely domestic U.S. arbitration. Similarly, allowing broad section 1782 discovery in connection with private arbitrations could be argued to undermine the simple and streamlined arbitral resolution of disputes for which parties have bargained. Here, too, we take no position, but note only that the U.S. Supreme Court has as yet had no occasion to provide its views on such arguments.

Until the U.S. Supreme Court resolves the matter, we can only advise our clients and the legal counsel with whom we cooperate abroad that there is no clear answer at present to the question of whether evidence may be gathered in the United States for use in a foreign private arbitration. A contractual provision prohibiting judicial review of an arbitral decision could well make seeking such evidence an uphill battle. Even absent such a prohibition, however, the significantly different views on the issue expressed by various U.S. federal courts suggest that, for the time being, the precise geographical location of the witness or evidence will be one of the most important factors dictating whether section 1782 relief will be available. In light of the foregoing, the decision of whether to seek evidence in the United States for use in a foreign private arbitration pursuant to section 1782 should be made only after both a review of the controlling contractual documents and close consultation with counsel.

1. This article updates pieces previously published in the January 2013 and October 2014 issues of Mainbrace.
2. Application of Consorcio Ecuatoriano de Telecomunicaciones S.A., 685 F.  d 987 (11th Cir. 2012).
3. National Broadcasting Co. v. Bear Sterns & Co., 165 F.3d 184 (2d Cir. 1999); Republic of Kazakhstan v. Biedermann Int’l, 168 F.3d 880 (5th Cir. 1999). The continuing viability of the Biedermann decision was recently affirmed by the Fifth Circuit Court of Appeals in El Paso Corp. v. La Comision Ejecutiva Hidroelectrica, 341 Fed. Appx. 31, 2009 U.S. App. LEXIS 17596 (5th Cir. 2009). The states within the geographical boundaries of the U.S. Second and Fifth Circuits are: New York, Connecticut, Vermont, Texas, Mississippi, and Louisiana.
4. In re Kleimar N.V., No. 16-mc-355, 2016 U.S. Dist. LEXIS 165297 (S.D.N.Y. November 16, 2016) (Marrero, J.).
5. In re Owl Shipping, LLC, No. 14-5655, 2014 U.S. Dist. LEXIS 148088 (D.N.J. Oct. 17, 2014). See also In re Application of Winning (HK) Shipping Co. Ltd., 2010 U.S. Dist LEXIS 54290 (S.D. Fla. 2010).
6. In re Gov’t of the Lao People’s Democratic Republic, No. 1:15-MC 00018, 2016 U.S. Dist. LEXIS 47998 (D. Mariana Islands April 7, 2016); In re TJAC Waterloo, LLC, No. 3:16-mc-9-CAN, 2016 U.S. Dist. LEXIS 56381 (N.D. Ind. April 27, 2016); In re Grupo Unidos por El Canal, S.A., No. 14-mc-80277, 2015 U.S. Dist. LEXIS (N.D. Cal. April 21, 2015); In re Grupo Unidos por el Canal, S.A., No. 14-mc-00226, 2015 U.S. Dist. LEXI 50910 (D. Colo. April 17, 2015); In re Dubey, No. SACV 13-677, 2013 U.S. Dist. LEXIS 83972 (C.D. Cal. June 7, 2013).
7. Cf. In re Kleimar, N.V., above, note 4, with In re Asia Marit. Pac. Ltd., No. 15-CV-2760, 2015 U.S. Dist. LEXIS 113307, note 8 (S.D.N.Y. Aug. 26, 2015) (Caproni, J.)(“Following Intel, it is unclear whether private foreign arbitration proceedings qualify for § 1782 discovery.”)
8. 542 U.S. 241 (2004).
9. 542 U.S. at 259-63.
10. 542 U.S. at 258-59.
11. 542 U.S. at 264-65.
12. 542 U.S. at 255.

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