Sixth Circuit Creates Split on International Arbitration Discovery Question
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The United States Court of Appeals for the Sixth Circuit has created a circuit split regarding whether 28 U.S.C. §1782(a) authorizes a federal court to order discovery in a private international arbitration proceeding. In Abdul Latif Jameel Transportation Co. v. FedEx Corp., No. 19-5315 (6th Cir., September 19, 2019), a Saudi Arabia-based transportation company, Abdul Latif Jameel (“ALJ”), filed a Section 1782(a) discovery application related to a foreign commercial arbitration proceeding against United States-based FedEx in the Western District of Tennessee at Memphis. Under Section 1782(a), a district court may order an individual “to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal.”
The federal district court held the arbitral proceeding did not involve a “foreign or international tribunal” and denied ALJ’s motion. On appeal, the Sixth Circuit Court of Appeals stated the case was “an issue of first impression” despite that the United States Supreme Court provided some statutory guidance in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004). After examining both the language and history of Section 1782(a), the appellate court held the law permitted discovery in foreign arbitration proceedings. Consequently, the United States Court of Appeals for the Sixth Circuit reversed the district court’s order and remanded the case for further consideration.
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