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Domestic Discovery for Foreign Arbitrations? – Now It’s the Supreme Court’s Turn 

by Frank J. Silvestri, Jr.

Published: March, 2021

Submission: March, 2021

 



In two earlier posts, I described the Circuit split over the question of whether a foreign private arbitration panel is a “foreign or international tribunal” for purposes of 28 U.S.C. § 1782. (Read: Domestic Discovery for Foreign Arbitrations? Now Three Circuits Say “No” and Domestic Discovery for Foreign Arbitrations? Location, Location, Location!) The statute allows United States District Courts to enter orders allowing discovery for use in such tribunals from parties “found” in the District. With a number of Circuits on either side of the issue, the split was highlighted on September 22, 2020, when the Seventh Circuit, in Servotronics, Inc. v. Rolls-Royce PLC, 975 F.3d 689 (7th Cir., 2020), held that discovery under § 1782 is not available to a party in a proceeding before a foreign private arbitration panel. The Seventh Circuit disagreed with an earlier decision by the Fourth Circuit holding that discovery under § 1782 was available to the very same party to the very same foreign arbitration. 954 F.3d 209 (4th Cir., 2020. Servotronics wanted to depose witnesses who were “found” in the District of South Carolina, which the Fourth Circuit approved, but it also wanted documents from custodians “found” in the Northern District of Illinois, which the Seventh Circuit nixed.


Given what must be the clearest Circuit split ever, it’s hardly surprising that the Supreme Court granted Servotronics’ petition for certiorari on March 22, 2021. Whether the Court can rule before the arbitration is concluded, and, if not, whether that will result in a dismissal for mootness, remains to be seen. Another issue lurking in the background is that Justice Alito took no part in the consideration or decision on Servotronics’ cert petition. Assuming that the reason he did not participate in the cert decision will require his recusal from deciding the case on the merits, there is a possibility of a four-to-four Supreme Court decision. The Seventh Circuit’s ruling would be affirmed by an equally divided Court, but the decision would lack precedential value. Servotronics would get the depositions it seeks but not the documents, and the issue that created the Circuit split would have to wait for another day and another Supreme Court case to be resolved.


 



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