Title

Circuit Split Deepened by Second Circuit's 'Functional' Test Application in Recent Section 1782 Ruling

Authors

Peter B. Rutledge, University of Georgia Law SchoolFollow
Emina Sadic Herzberger, University of Georgia Law SchoolFollow

Originally published in the Daily Report on September 1, 2020

Abstract

Federal law authorizes district courts to order discovery for use in a proceeding before a "foreign or international tribunal." While that law, 28 U.S.C. § 1782, permits interested persons to request such discovery, neither the statutory language nor Supreme Court jurisprudence definitively resolves whether private arbitral tribunals fall within its scope. Unsurprisingly, the lack of clear guidance on this matter has triggered a circuit split, with the Second and Fifth Circuits generally declining to extend § 1782 to private arbitral tribunals while the Fourth and Sixth Circuits broadly interpret the statutory language to apply § 1782 to private arbitral tribunals. In the Eleventh Circuit, the doctrine is in flux.

Repository Citation

Rutledge, Peter B. and Herzberger, Emina Sadic, "Circuit Split Deepened by Second Circuit's 'Functional' Test Application in Recent Section 1782 Ruling" (2020). Popular Media. 324.
https://digitalcommons.law.uga.edu/fac_pm/324