Sixth Circuit’s Plain-Meaning Approach to Foreign Arbitration Discovery
Parties may now seek discovery from district courts within the Sixth Circuit for use in foreign private arbitrations. In Abdul Latif Jameel Transportation Company v. FedEx, a unanimous panel held that the plain meaning of the phrase “foreign or international tribunal” included non-governmental tribunals. The decision addresses an important foreign-discovery provision that, according to some at the ABA, had raised more questions than courts had answered.
Following a deep dive into dictionaries, treatises, and judicial precedent, the Sixth Circuit held that a federal district court has the authority, under 28 U.S.C. § 1782(a), to compel discovery from a U.S. corporation for use in a foreign private proceedings—in this case, a Dubai arbitration. The decision departed from two 1999 precedents of the Second and Fifth Circuits, which limit discovery to government proceedings. Those opinions, according to Judge Bush, “turned to legislative history too early in the interpretive process.”
His unanimous opinion (Chief Judge Cole and Judge Griffin joining), by contrast, adopted a textualist interpretation to § 1782(a). That statute allows U.S. courts to order a person or corporation that resides in the district to produce testimony, a statement, documents, or things “for use in a proceeding in a foreign or international tribunal.” According to both legal and non-legal dictionaries, the ordinary meaning of the word “tribunal” in 1964 (when Congress enacted § 1782(a)) embraced private arbitrations. So did an 1853 treatise written by none other than Justice Joseph Story, a 20th century string of state supreme court opinions, and various U.S. Supreme Court opinions.
What does this mean for U.S. businesses and counsel? District courts in the Sixth Circuit may start hearing from more parties embroiled in foreign disputes. Discovery is by no means absolute, however: under the Supreme Court’s 2001 decision in Intel v. ADM, several discretionary factors govern whether trial judges should compel discovery under §1782(a), even when the law allows it. Absent a cert grant, the Western District of Tennessee will face that question on remand.