Under 28 U.S.C. § 1782(a), a federal district court may order discovery “for use in a proceeding in a foreign or international tribunal” upon application by “any interested person.” On September 19, 2019, in Abdul Latif Jameel Transportation Company Ltd. v. FedEx Corp., the U.S. Court of Appeals for the Sixth Circuit ruled that a commercial arbitration pending in a foreign country constituted a “foreign or international tribunal” as that phrase is interpreted under § 1782(a) and that discovery was available under the statute. In so doing, the Sixth Circuit reversed the district court’s denial of the appellant’s § 1782(a) application and remanded for a determination as to which specific discovery demands should be granted.

This dispute arose from the souring commercial relationship between Abdul Latif Jameel Transportation Company Limited (ALJ) and FedEx International (FedEx In’tl.), a wholly owned subsidiary of its parent FedEx Corp., to provide transportation-related services in and around Saudi Arabia. ALJ entered into two separate transportation agreements with FedEx Int’l., each with its own arbitration clause. The exact cause of the rupture in the relationship is disputed by the parties; but, in 2018, ALJ commenced one arbitration in Dubai and a second arbitration in Saudi Arabia. A couple of months after commencing both arbitrations, ALJ commenced suit pursuant to § 1782(a) in the U.S. District Court for the Western District of Tennessee seeking to compel production of documents and the testimony of a corporate representative from FedEx Corp. In April 2019, the district court denied the application in its entirety, holding that a private arbitration was not included within the term “foreign and international tribunal” and therefore ALJ was not allowed discovery within the meaning of § 1782(a).

The Sixth Circuit’s decision is significant because its ruling was contrary to decisions from the Second Circuit and the Fifth Circuit. Both the Second and Fifth Circuit concluded that the word “tribunal” included only “governmental or intergovernmental arbitral tribunals and conventional courts and other state-sponsored adjudicatory bodies.” Both circuit courts reached this outcome by ruling that the phrase “foreign and international tribunal” was ambiguous and then analyzed the legislative history of the statute to conclude that the meaning of tribunal did not include private arbitration.

The Sixth Circuit initially considered how the word tribunal was defined in both legal and English dictionaries, but was reluctant to rely solely on sources that were published more than 10 years after the statute’s enactment. The Sixth Circuit then analyzed how American courts have applied the term tribunal and concluded, based on the Supreme Court, and federal and state court precedent, the majority of U.S. courts’ use of the word tribunal included private arbitral bodies.

The Sixth Circuit found the U.S. Supreme Court’s decision in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) to be especially persuasive. In Intel, Advanced Micro Devices (AMD) filed a complaint with the European Commission against Intel, alleging that Intel was using its size to unfairly compete and otherwise monopolize the computer microprocessor market. Complaints filed before the European Commission are first reviewed by the commission’s directorate general, which performed fact-finding to determine if the commission should in fact pursue the complaint. AMD asked the directorate to review documents containing some of Intel’s trade secrets from a separate American court case. The directorate declined. Because European law did not provide a way for AMD to gain access to these documents, AMD filed suit under § 1782(a) in the United States against Intel in order to compel discovery of these documents so they could be used in their complaint before the European Commission. The district court found that the directorate’s investigation was only a fact-finding body and not a foreign tribunal of any kind, and ruled in favor of Intel. The Ninth Circuit reversed.

In a 7-1 decision, the Supreme Court reversed the Ninth Circuit, ruling that just because a foreign tribunal was unwilling to demand certain documents did not mean that it would be unwilling to accept them if provided by other means. By permitting, but not forcing, some discovery, American judges were given the discretion to decide the nature and extent of discovery. To that end, the Supreme Court in Intel found that four factors should be considered in determining whether to permit discovery in support of a foreign tribunal:

First, when the person from whom discovery is sought is a participant in the foreign proceeding …, the need for § 1782(a) aid generally is not as apparent as it ordinarily is when evidence is sought from a nonparticipant in the matter arising abroad. …

Second, … a court … may take into account the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance …. [Third], a district court could consider whether the § 1782(a) request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States. [Fourth], unduly intrusive or burdensome requests may be rejected or trimmed.

The district court in this case did not address the Intel factors because it had already ruled that § 1782(a) did not apply to private arbitrations. The Sixth Circuit declined to analyze the Intel factors in the first instance and remanded to the district court to conduct its own inquiry and render its determination accordingly.