Private Adjudicatory Bodies Are Not Foreign or International Tribunals under 28 U.S.C. § 1782

In a unanimous opinion this term, the U.S. Supreme Court resolved a circuit split spanning more than two decades when it held that no party subject to a private adjudicatory body is privy to the discovery assistance otherwise conferred to party in a proceeding before a “foreign or international tribunal” by 28 U.S.C. § 1782.

Pursuant to section 1782, a federal district court “may order” a person who “resides or is found” in the district to give a “testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation.” As the Supreme Court noted in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), section 1782 establishes a broad scope for discovery, “to assist foreign tribunals in obtaining relevant information that the tribunals may find useful but, for reasons having no bearing on international comity, they cannot obtain under their own laws.” Simply put, section 1782 confers discovery privileges that are much broader than the privileges conferred by most foreign tribunals.

But now, with the Court’s decision in ZF Automotive US, Inc. v. Luxshare, Ltd., 142 S. Ct. 2078 (2022), the Court made clear the limited scope of that broad discovery privilege. Only parties before governmental or intergovernmental adjudicatory bodies are privy to the discovery assistance conferred by section 1782.

In ZF Automotive, the Court consolidated two cases, Luxshare, Ltd. v. ZF Automotive US, Inc., 15 F.4th 780 (6th Cir. 2021) and In re Fund for Protection of Inventor Rights in Foreign States v. AlixPartners, LLP, 5 F.4th 216 (2d Cir. 2021), where the Sixth and Second Circuits held that a “private dispute-resolution organization based in Berlin” and an ad hoc panel, respectively, were each “foreign or international tribunals” under section 1782. The Supreme Court, however, reversed. The Court held that private adjudicatory bodies do not fall under the statute, and in these specific cases, both entities are indeed private adjudicatory bodies.

The Court implicitly overturned prior decisions by the Fourth and Sixth Circuits, which had previously held that parties before private adjudicatory bodies are privy to that broad section 1782 discovery assistance, while affirming prior decisions by the Second, Fifth, and Seventh Circuits, which had previously held otherwise. The Court analyzed the text of section 1782 in context and held that “international tribunals” are those that derive authority from two or more nations, and “foreign tribunals” are those that derive authority from one, foreign nation. Neither the statute’s history, nor its relation to the Federal Arbitration Act support extending section 1782 to disputes before private adjudicatory bodies not created or governed by a government.

Now, attorneys across the country involved in international arbitration have a bright-line rule based on a plain reading of the statute’s text: Parties before governmental or intergovernmental adjudicatory bodies can conduct discovery under section 1782; parties before private adjudicatory bodies cannot.