The scope of discovery in international arbitration is generally narrower than that available to litigants in the United States. However, 28 U.S.C. § 1782 (“Section 1782”) makes a wide range of U.S. discovery tools available to litigants in foreign proceedings, where certain preconditions are satisfied.
Recent appellate decisions suggest a growing circuit split between U.S. Courts of Appeals on the issue of whether arbitration proceedings should qualify for assistance under the statute. The Fifth Circuit has ruled against Section 1782 assistance for arbitration proceedings, the Third and Eleventh Circuits have suggested (but not decided) that private arbitrations could qualify for assistance, while the Seventh Circuit has conceded that the law is unsettled.
Intervention by the U.S. Supreme Court may be required before this issue is finally decided. For the moment, this means that it is crucially important for a potential Section 1782 applicant to:
(i) understand the criteria that must be met in order to successfully qualify for assistance; and
(ii) consider carefully the case law in the U.S. federal district and circuit where the application will be made.