The United States Supreme Court has reportedly been asked to resolve a circuit split over whether parties to a foreign commercial arbitration proceeding may seek discovery in the United States under 28 U.S.C. § 1782(a).  Under the law, evidence for use before a “foreign or international tribunal” may be obtained via the U.S. federal district courts.  The nation’s federal courts, however, are currently split regarding whether private commercial arbitration tribunals are included in the definition of “foreign or international tribunal.”  The Second, Fifth, and Seventh Circuit Courts of Appeal have ruled foreign commercial arbitration proceedings do not qualify as a “foreign or international tribunal,” while the Fourth and Sixth Circuits have held participants in such proceedings are permitted to seek discovery under the law.  The issue is currently being considered by the Third and Ninth Circuits as well.

Earlier this month, a petition for a writ of certiorari (20-794) was filed in Servotronics, Inc. v. Rolls-Royce PLC, No. 19-1847 (7th Cir. 2020).  In the case, the Seventh Circuit Court of Appeals denied a request for discovery under Section 1782 despite that only six months prior the Fourth Circuit permitted discovery in a nearly identical sister case, Servotronics, Inc. v. Boeing Co., No. 18-2454 (4th Cir. 2020).  It will be interesting to see whether the Supreme Court of the United States agrees to resolve the current split.

Please check back soon for any updates on this interesting case!

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