Williams Industrial Services, LLC v. Steel Equipment Corp., CA NO: 2:08-MC-179-AJS (W.D. Pa. June 24, 2008).

III. The Application of §1782 to Private International Arbitration

Subsequent to the Supreme Court’s decision in Intel, various courts have granted §1782 discovery in aid of private arbitral matters. In In re Hallmark Capital Corp., the court granted discovery for use in a private Israeli arbitration proceeding. By its Order dated September 13, 2007 denying the discovery target’s motion for reconsideration, the court bypassed National Broadcasting by relying upon Intel’s rejection of restrictive definitional exclusions.39 In In re Application Roz Trading, the court granted an application requesting the production of documents for use before an arbitral panel of the International Arbitral Centre of the Austrian Federal Economic Chamber in Vienna.40 In Williams Industrial Services, LLC v. Steel Equipment Corp., in the absence of opposition the court granted document discovery for use in a private arbitration matter before the International Chamber of Commerce in Paris, France.41

Pre-Hearing Discovery From Non-Party To An Arbitration Disallowed.The Second Circuit has held that Section 7 of the Federal Arbitration Act does not authorize an arbitrator to compel pre-hearing document discovery from non-parties to an arbitration.  Life Receivables Trust v. Syndicate 102, 549 F.3d 210 (2d Cir. 2008).  Reversing the district court’s grant of a motion to enforce a discovery subpoena, the court of appeals concluded that documents are discoverable in arbitration proceedings only when brought before the arbitrators by a testifying witness.  The court declined to find exceptions for either closely-related entities or for parties to the arbitration agreement that are not parties to the arbitration itself.  In reaching this result, the Second Circuit followed the Third Circuit, but split with the Eighth Circuit.

Discovery On Behalf Of Foreign Tribunals Does Not Encompass Arbitrations.The Southern District of Texas has held that 28 U.S.C. § 1782, which authorizes a district court to order persons residing in the district to give discovery “for use in a proceeding in a foreign or international tribunal,” does not encompass private, international arbitration proceedings.  La Comision Ejecutiva Hidroelecctrica Del Rio Lempa v. El Paso Corp., No. H-08-335, 2008 WL 5070119 (S.D. Tex. Nov. 20, 2008).  The court declined to follow the other district courts that have held to the contrary.  In holding section 1782 inapplicable, the court noted that arbitration is intended as a speedy and economical means of dispute resolution, and that extensive discovery through federal courts would harm international comity.

In re Application of Peter Damien MARANO for Order to Take Discovery Pursuant to 28 U.S.C. § 1782. , N.D.Cal., February 25, 2009ORDER D. LOWELL JENSEN, District Judge. On February 12, 2009, Peter Damien Marano ("Marano") filed an application to take discovery pursuant to 28 U.S.C. § 1782. On February 20, 2009, Frances F. Bowes ("Bowes") filed a letter brief in opposition. Having considered the papers submitted and the applicable law, the Court hereby DENIES the application. I. BACKGROUND A. Factual Background and Procedural History Marano is a party in a divorce proceeding in London, England. According to Marano, th...

Application and Avoidance of §28 U.S.C. §1782 Discovery in International Commercial Arbitration; Can the New York Convention and the Doctrine of "Manifest Disregard of the Law" Help or Hurt? TDM Volume 6, issue #01 - March 2009

The panel also discussed the implications of 28 USC 1782 for international arbitration. Robert Smit, of Simpson Thacher & Bartlett, said "discovery should be available under 1782 in aid of foreign and international arbitration provided the discovery application is made or approved by the arbitral tribunal." Smit, chairman of the International Commercial Dispute Committee of the Association of the Bar of the City of New York, said the committee will soon issue a report on best practices vis-à-vis Section 1782 and international arbitration.