Resolving Business Disputes: U.S. Discovery in Aid of International Private Commercial Arbitration

This article appears in full in Wisconsin Lawyer, and is reprinted here with permission.

Suppose one afternoon a subpoena seeking testimony and documents from your client and referencing 28 U.S.C. §1782 comes across your desk. To your surprise, the subpoena was served on your client in connection with a private arbitration proceeding pending outside the United States. Curious as to why your client may have to produce documents or provide testimony to aid in a proceeding that seemingly has no connection to the United States, you look at the text of the statute and learn that 28 U.S.C. §1782 provides, in part:

“(a)The district court of the district in which a person resides or is found may order [the person] to give [the person’s] testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court ….”

Three opinions issued in 2020 – the Seventh Circuit Court of Appeals’ decision in Servotronics Inc. v. Rolls-Royce PLC, the Fourth Circuit Court of Appeals’ decision in Servotronics Inc. v. Boeing Co., and the Second Circuit Court of Appeals’ decision in Guo v. Deutsche Bank Securities Inc. (In re Guo) – added to a growing federal court split over the proper interpretation of a “foreign or international tribunal” under 28 U.S.C. §1782. Because of these decisions, the location of the district court from which the subpoena was issued may very well determine its outcome.

To read the full article, visit the Wisconsin Lawyer website.