Sixth Circuit Approves Discovery In Aid Of Foreign Private Arbitrations

Key Points

• The 6th Circuit Court of Appeals recently approved the use of 28 U.S.C. 1782(a) to obtain discovery in connection with a commercial arbitration proceeding occurring outside the United States.
• The decision establishes a circuit split, which increases the chances that the Supreme Court will weigh in to resolve the issue.
• Parties who desire certainty regarding the application of Section 1782 to private arbitrations should consider addressing the issue in all future arbitration clauses.

In a recent decision with potentially wide-ranging consequences for private international arbitrations, the 6th Circuit Court of Appeals recently approved the use of 28 U.S.C. 1782(a) to obtain discovery in connection with a commercial arbitration proceeding occurring outside the United States. In re Application to Obtain Discovery for Use in Foreign Proceeding, 2019 WL 4509287 (6th Cir. Sept. 19, 2019). In doing so, the 6th Circuit diverged from two other circuit