28 U.S.C. § 1782 is a powerful tool that permits foreign
litigants to obtain broad U.S. discovery in aid of their foreign
court litigation. Bank records and key documents can be obtained
and witnesses can be deposed – all with a subpoena, just like
in any federal litigation. But whether this discovery could be used
in private commercial international arbitration was an
unresolved question. Indeed, the appellate courts that had
addressed this issue previously had essentially prevented litigants
from using § 1782 to aid their international arbitrations.
Therefore, the recent ruling from the Sixth Circuit Court of
Appeals in Abdul Latif Jameel Transportation Company Ltd. v.
FedEx Corporation, 2019 WL 4509287 (6th Cir. Sept. 19, 2019)
was significant. The Sixth Circuit has issued the first appellate
ruling that expressly holds § 1782 does apply to private
international arbitrations.
