Abdul Latif Jameel Transp. Co. v. FedEx Corp., No. 19-5315, (6th Cir. Sept. 19, 2019) [click for opinion]
Plaintiff brought an application under 28 U.S.C. § 1782 ("Section 1782") seeking discovery from FedEx Corp. in connection with arbitrations being conducted in Saudi Arabia and Dubai. Section 1782 authorizes a federal district court to order the production of documents, as well as depositions of witnesses, in aid of foreign or international proceedings. The statute provides that the requested discovery must be "for use in a proceeding in a foreign or international tribunal." The district court denied the request on the ground that private, commercial arbitrations do not qualify as "tribunals." On appeal, the Sixth Circuit reversed, thus becoming the first circuit court to hold that Section 1782 can be used in aid of foreign, private arbitration.
The Sixth Circuit's analysis was mostly textual. It found that the term "foreign tribunal" was not a term of art and it therefore sought to define the word "tribunal." The court noted that there were several legal dictionaries that contained definitions of "tribunal" broad enough to include private arbitration. Turning to non-legal sources, at least two widely used English dictionaries define "tribunal" broadly enough to include private arbitrations. The court also remarked that American jurists and lawyers have long used the word "tribunal" in its broader sense; a sense that includes private, contracted-for, commercial arbitral panels. Further, according to the Sixth Circuit, the courts have used the word to describe private, contracted-for commercial arbitrations for many years before Congress added the relevant language to Section 1782. And, the Supreme Court as well as other courts still use the word "tribunal" that way today.
The Sixth Circuit also referred to the Supreme Court's Intel decision, its only Section 1782 decision to date. That case did not concern arbitration. However, in the decision, Justice Ginsberg quoted from an article written by the late Professor Hans Smit, the primary draftsperson of the current version of Section 1782, in which he wrote "[t]he term 'tribunal' … includes investigating magistrates, administrative and arbitral tribunals, and quasi-judicial agencies, as well as conventional civil, commercial, criminal, and administrative courts." The Sixth Circuit was not persuaded that, as numerous other courts had held, this was mere dictum. Likewise, the Sixth Circuit did not agree with a number of other courts that held that Section 1782 can apply to state-sponsored arbitrations, but not to private, commercial arbitration.
The court recognized that its decision was at odds with the two other circuits' decisions on this issue. In Biedermann and in National Broadcasting Co., the Fifth and Second Circuits, respectively, had held that Section 1782 was not available in aid of private arbitration. The court disagreed because it thought those courts should not have turned to the legislative history to interpret the statute.
Although Petitioner requested that the Sixth Circuit order the discovery directly, the court refused. Because the district court had rejected the application. it had not addressed the Intel discretionary factors. The Sixth Circuit declined to analyze the Intel factors in the first instance because it requires careful consideration of the facts and circumstances of the case, which is a task for the district court.