Section 1782 of Title 28 of the U.S. Code is a topic that has come up more frequently than one would imagine over the past year or so as parties look to leverage it to obtain U.S. Discovery in the context of an international arbitration.
This article by David Zaslowsky from Baker McKenzie provides a very neat summary of the current situation and recent cases - where the outcomes have not all been the same - as well as providing three suggestions to allow parties to have greater control over whether U.S. discovery can be used in conjunction with international arbitration:
- "Parties could include in their arbitration clause a provision that states that there shall be no resort to national courts to seek discovery without the consent of the arbitrators and no such evidence obtained without the consent of the arbitrators shall be admissible in the arbitration..."
- Arbitrators should address the potential issue at the preliminary conference and "...should make clear that the parties are not authorized to resort to national courts without the prior consent of the tribunal."
- "The rules of almost every — if not every — arbitral institution do not provide details about the scope of discovery or the methods of discovery – if any. Rather, the rules provide generally that such matters shall be left to the discretion of the arbitrators."
Not being a lawyer, I cannot comment on the legal merits of these suggestions or of when or how or if this can be used and would suggest a thorough read of the article to help with that, but I believe it is a useful tool for anyone to consider if they are seeking to obtain documents for a matter outside of U.S. legal proceedings.
Although, there are obviously two sides to every matter, so people should be equally prepared for this to be used against them and to have appropriate counter arguments prepared. It is obviously not going to be used in every matter, but where it can be, it is always best to be prepared. Be ready to arm or defend.
Section 1782 of Title 28 of the U.S. Code is a very powerful tool that authorizes the obtaining of discovery in the U.S. for use in foreign proceedings, and use of the statute is increasing. Meanwhile, international arbitration continues to grow as a neutral forum for resolving international disputes. At the intersection of these two trends is the important question of whether Section 1782 can be used to obtain discovery in aid of private, international arbitration proceedings.