In a Divergence From Other US Federal Circuits, The US Sixth Circuit Court of Appeals Rules That 28 U.S.C. § 1782 May Permit US Discovery for Use in Non-US Private Arbitrations

and | October 8, 2019 | International Commercial and Investor-State Arbitration

Title 28, US Code, Section 1782 authorizes an interested person to petition a US federal district court where any person “resides or is found” for an order directing such person to provide documents or testimony for use “in a proceeding in a foreign or international tribunal.” 28 U.S.C. § 1782(a). In In re Application to Obtain Discovery for Use in Foreign Proceedings, No. 19-5315, 2019 WL 4509287 (6th Cir. Sept. 19, 2019), the US Court of Appeals for the Sixth Circuit was called upon to decide if Section 1782 permits US-style discovery for use in a non-US private arbitration. In doing so, the Sixth Circuit became the first federal appellate court to depart from the interpretation of Section 1782 adopted by the Second and Fifth Circuits.  In contrast to its sister Circuits, a unanimous three-judge panel of the Sixth Circuit held that the word “tribunal” in the relevant clause of Section 1782 includes private arbitrations. This decision could make it easier for parties engaged in non-US arbitrations to obtain discovery from US entities, particularly those that fall within the Sixth Circuit’s jurisdictional reach.  

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Charles E. Harris, II

Mayer Brown

Charles E. Harris, II is a partner in Mayer Brown’s Litigation & Dispute Resolution group. He focuses his practice on a range of matters of paramount importance to the business community, including class actions, arbitration agreements, contract and real estate disputes, administrative actions, and privacy and cybersecurity. Charles has also handled many First Amendment cases alleging defamation and other privacy torts. In addition, as a registered patent attorney, he has litigated patent, copyright, trademark and trade secrets disputes. He also represents clients on appeal in both federal and state courts.

Kwadwo Sarkodie

Mayer Brown

Kwadwo Sarkodie is a partner in the Construction & Engineering group of Mayer Brown's London office. He has substantial experience across a broad range of dispute resolution. He regularly advises employers, insurers, contractors, subcontractors and consultants in relation to disputes concerning such matters as defective works, final accounts, extension of time and loss and expense under a variety of forms of construction contract (both standard form and bespoke). He has extensive experience with regard to litigation, mediation and adjudication.

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