Section 1782 of the United States Code, Chapter 28, provides in relevant part: “The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal…” The statute is the primary means by which the United States provides assistance to foreign and international tribunals by allowing for discovery requests and necessary evidence for litigation. While the statute is praised for its broad application and liberal assistance, confusion about crucial aspects of its framework have created circuit splits, often making its application more difficult than beneficial.
One of the main issues to arise for circuit courts interpreting the statute has been whether private international arbitration qualifies as a “foreign tribunal” for purposes of allowing discovery by the requesting party. While several circuit courts have held that the section allows discovery in private international arbitration, other circuit courts have analyzed the legislative history and concluded that neither the plain language nor the legislative history supports this broad interpretation. Many opponents argue that, in applying the broad discovery rules to private international arbitration, this takes the authority to manage discovery from the arbitrators and defeats the underlying purpose of arbitration as being cost-effective, speedy, private, and narrowly controlled through the decisions of the arbitrator.
This paper will analyze the holdings of the split circuit courts, and then examine the legal implications of expanding the statute to apply to private international arbitration. This author posits that the statute should be applied to private international arbitration, as this should be considered a foreign tribunal to promote international arbitration in both the public and private realm; however, it should ultimately remain in the court‟s discretion as to whether broad discovery should be allowed, in an effort to maintain the underlying objectives of private arbitration.