Sixth Circuit Allows § 1782 Discovery In Private International Arbitration

First Tuesday Update is our monthly take on current issues in commercial disputes, international arbitration, and judgment enforcement.  

In September, the Sixth Circuit held that a federal district court may order discovery for use in a foreign private arbitration. Abdul Latif Jameel Transportation Co. v. FedEx Corp. (6th Cir. 2019). 28 U.S.C. § 1782(a) authorizes discovery "for use in a proceeding in a foreign or international tribunal" upon application by "any interested person." The Sixth Circuit held that private international arbitration is a "foreign tribunal” for purposes of that statute. The Sixth Circuit's decision creates a circuit split between it and the Second and Fifth Circuits—a split that the United States Supreme Court may be interested in resolving, given its opinion in Intel Corp. v. Advanced Micro Devices, Inc., 542 US 241 (2004). At a minimum, this decision is likely to further the nearly constant debate regarding whether US-style discovery is