Broadening the Scope of 28 U.S.C. § 1782: Trends in Using U.S. Discovery In Foreign Proceedings

Recent decisions of the Sixth and Second Circuits have the potential to significantly broaden the application of 28 U.S.C. § 1782 in order to compel production of documentary evidence for use in arbitration proceedings seated outside the U.S.

Specifically, on September 19, 2019 the Sixth Circuit determined that the term “foreign or international tribunals” as used in § 1782 encompasses private foreign or international arbitrations, as well as state-sponsored proceedings.This is in direct contrast to recent decisions of the Second and Fifth Circuits, which had restricted discovery pursuant to § 1782 to national courts and other state-sponsored bodies.

Separately, on October 8, 2019, the Second Circuit ruled that § 1782 applies extraterritorially to encompass documents wherever they are located, provided they are within the “possession or control” of the respondent party.

These two recent decisions may substantially broaden the scope of discovery available under § 1782 in cases involving foreign or international arbitrations and/or documents located outside of the U.S. Such a broadening could be especially relevant for entities like financial institutions and consulting firms that often maintain substantial repositories of documents and information for their clients.  Considering the potential significance of the two decisions, they also set the stage for possible review of the statute by the U.S. Supreme Court for the first time since 2004.

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