The question presented by the Servotronics’ petition is:
Whether the discretion granted to district courts in 28 U.S.C. §1782(a) to render assistance in gathering evidence for use in “a foreign or international tribunal” encompasses private commercial arbitral tribunals, as the Fourth and Sixth Circuits have held, or excludes such tribunals without expressing an exclusionary intent, as the Second, Fifth, and, in the case below, the Seventh Circuit, have held.
Reduced to its essence, the issue turns on whether a private international arbitration panel is a “tribunal” within the meaning of the phrase “foreign or international tribunal.” Section 1782 grants U.S. federal district courts discretionary authority to order production of evidence from U.S.-located parties for use in proceedings before a foreign “tribunal.” According to the only Supreme Court case construing §1782, Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), the term “tribunal” includes not only a court but also other types of adjudicatory bodies, which in the Intel case was specifically found to include the European Union’s Directorate-General for Competition. Under §1782, district courts may in their discretion, applying specific factors set forth in the Intel decision, order any type of discovery authorized under the federal civil rules from persons and entities located in the district in which the court sits, including depositions and documents and electronically stored information.
The underlying Servotronics arbitration, pending in London, involves an indemnity claim by Rolls-Royce against Servotronics for more than $12 million to recover for a settlement Rolls-Royce paid to Boeing that resulted from a jet engine fire on a Boeing 787 Dreamliner at Boeing’s Charleston, South Carolina, facility. Servotronics supplied the fuel valve that Rolls-Royce claims was responsible for the fire. Under §1782, Servotronics brought parallel applications in both Charleston, where the fire occurred, and Chicago, at Boeing’s headquarters, seeking depositions and document discovery from Boeing. The district courts in both the South Carolina and Illinois dismissed the Servotronics’ applications, resulting in concurrent appeals to the Fourth and Seventh Circuits. The Fourth Circuit reversed, while the Seventh Circuit affirmed.
As noted in the question presented, there is a clear and direct circuit split between decisions by the Second, Fifth, and Seventh Circuits against application of §1782 and decisions of the Fourth and Sixth Circuits holding that §1782 does apply with respect to private international arbitral tribunals. Of particular note for the Servotronics case is the fact there is even a circuit split in the two Servotroncs cases that sought evidence from Boeing in the same London-based international arbitration. The mere existence of the circuit split on an important federal issue makes a compelling case for the Supreme Court to grant Servotronics’ petition. Without resolution, there inevitably will continue to be costly litigation over district court jurisdiction in those circuits that have not decided the issue and blatant forum shopping to choose a district in the Fourth or Sixth Circuits for parties seeking §1782 discovery.
Whether the application of §1782 is good for international commercial arbitration is a highly controversial subject. Those in favor believe that §1782 well serves the interests of justice by enabling parties before international arbitration tribunals to seek material evidence, especially evidence from third-parties, that otherwise could not either be obtained or presented at the arbitration hearing. Those opposed say that U.S.-style discovery is unreasonably costly and intrusive. Moreover, the thought of a U.S. court compelling depositions and broad document production from parties to the arbitration and from third-parties is an anathema in most places in the world outside the United States. The opposition also believes that if §1782 discovery was allowed the costs and delays involved would cause great damage to the institution of international commercial arbitration. On the other hand, a mitigating factor to those concerns would be the ability of the parties themselves to address the availability of §1782 discovery in their arbitration agreements and for arbitral institutions to adopt rules that give arbitral tribunals the authority to control whether the parties before them are entitled to seek such discovery. Significantly, the IBA Evidence Rules at article 3, section 9, already require that arbitral tribunals must first approve any application to a court to seek third-party evidence.
Highlighting the intense interest in this issue, a mock Supreme Court argument was presented at Fordham Law School this past November as part of the 2020 New York Arbitration week. The mock argument featured former Solicitor General Paul D. Clement as Chief Justice.
I was privileged to have been asked to prepare and file an amicus brief for the International Institute for Conflict Prevention & Resolution (CPR) to support the Servotronics petition. Due to CPR’s differing constituencies supporting and opposing application of §1782, CPR’s brief took no position on the merits of the question presented but only emphasized how important it was for the Supreme Court to resolve the circuit split. The Atlanta International Arbitration Society filed an amicus brief making similar arguments.
The CPR amicus brief also urged the Supreme Court to set the case for argument and decision this term and to not set the case over to the next term. CPR’s concern is that there is a critical issue about whether the Servotronics case might become moot should the Supreme Court not proceed to hear the case this term and issue its decision by this June. This is because the final hearing in the underlying arbitration is now set to begin in London on May 10, 2021, which suggests that the final award might well be issued within weeks thereafter. And, of course, should the final award be issued before the Supreme Court decides the case, it is likely that the Servotronics case will be deemed to have become moot and result in dismissal.
Stay tuned. The Supreme Court will likely announce whether it will hear the case this term. For those interested in the briefs, they are available on Supreme Court’s website at Servotronics, Inc., Petitioner v. Rolls-Royce PLC, et al.
