28 USC § 1782

Section 1782.  District court holds that Section 1782 discovery may be used in aid of private international arbitration.   In re: Application of Babcock Borsig AG for Assistance Before a Foreign Tribunal, Case No. 08-mc-10128-DPW (D. Mass. 2008) [click for opinion]

Section 1782.  District court holds that Section 1782 discovery may not be used in aid of private international arbitration.    La Comision Ejecutiva Hidroelecctrica del Rio Lempa v. El Paso Corp., 2008 U.S. Dist. LEXIS 94395 (S.D. Tex. Nov. 20, 2008) [click for opinion]

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.

Title: Weber v. Finker

[01/15] Weber v. FinkerIn a case involving the authority of the federal district courts to assist litigants before foreign tribunals with the production of evidence in the U.S., partial grant and denial of petitioner's motion to compel discovery filed pursuant to 28 U.S.C. section 1742(a) is affirmed where: 1) the circuit court rejects a claim that petitioner should have brought her request for judicial assistance under The Treaty Between the United States of America and the Swiss Confederation on Mutual Assistance in Criminal Matters, as opposed to section 1782; 2) the district court was well within its discretion to order discovery pursuant to the Federal Rules of Civil Procedure; and 3) shareholders waived a claim that the district court erred in finding the motion to compel could be treated as a pretrial matter that could be referred to a Magistrate Judge.

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