CURRENT MONTH (April 2021)
Business Litigation
The Supreme Court Slated to Resolve a Circuit Split
By Leslie A. Berkoff
On March 22, 2021, the United States Supreme Court granted certiorari in Servotronics Inc. v. Rolls-Royce PLC, No. 20-794, to determine whether the discretion granted to district courts under 28 U.S.C. § 1782 (“§ 1782”) to render assistance in gathering evidence for use in a “foreign or international tribunal” includes compelling discovery in aid of private commercial arbitrations (in contrast to treaty-based arbitrations). In the decision below, the Seventh Circuit declined Servotronics’ request for discovery assistance in connection with a private arbitration in the United Kingdom, and Servotronics petitioned the Supreme Court for certiorari.
§ 1782(a) permits any party or other interested person involved in proceedings before a foreign or international tribunal, or the tribunal itself, to make a request to a U.S.federal district court to compel discovery from a person or entity found in the district in which the court sits. § 1782(a) does not define, however, what qualifies as a “foreign or international tribunal” and there is currently a clear circuit split as to whether § 1782(a) applies to an international commercial (“private”) arbitration. While the Fourth and Sixth Circuits have held that § 1782 applies to private arbitral tribunals, the Seventh Circuit aligned with decisions in the Second and Fifth Circuits holding that § 1782 does not apply to such tribunals (the Third and Ninth Circuits have pending decisions on this issue as well).
Briefs are due during the spring and summer, but argument will not take place until the fall. Given the timing of the anticipated argument, it is entirely possible that the dispute in Servotronics is resolved before argument occurs. Moreover, since Justice Alito took no part in the decision to grant certiorari, the case will likely be decided by the remaining eight Justices. On the chance that the Court splits 4-4, then the Seventh Circuit decision could potentially be affirmed by an equally divided Supreme Court, which may leave no clarity at all for parties who confront this issue in the future.
