Enforceable Discovery in U.S. for Foreign “Tribunal” Does Not Include Private Arbitration

Federal law allows a party to seek discovery within the United States in aid of a “foreign or international tribunal.” Does ‘tribunal” mean or include a private arbitration proceeding? That was the issue recently reviewed and decided by a federal judge.

A German company engaged in arbitration in Germany sought discovery from a U.S. company. The German company filed a petition in federal court in Delaware, seeking a court order to direct the U.S. company to comply. But the domestic company argued that the federal law in question, 28 U.S.C. § 1782(a), in referring to a “tribunal,” only refers to a public proceeding and not a private proceeding such as arbitration.

In a short decision, the court provides significant analysis of the legislative history of the federal law, and of subsequent court decisions. The court conceded instances where the word “tribunal” has been used to refer to private arbitration, and agreed that usage of the word in context was ambiguous. Nonetheless, the court concluded that the statute enacted in 1964 was intended to refer only to “a foreign government, court, or agency, and not a private arbitral body.” Thus, discovery of the domestic company in support of a private foreign arbitration would not be allowed under this federal law.

The case is In re Storag Etzel GmbH, 2020 U.S. Dist. LEXIS 63940 (D. Del., April 13, 2020) (subscription required).