Questions Remain About Powerful Foreign Discovery Tool

Bracewell’s Rachel Goldman spoke with Law360 about the recent US Supreme Court ruling that only foreign or international tribunals imbued with governmental authority fall within the ambit of US Code, Section 1782. Under this code, federal courts are allowed to order entities in their districts to turn over evidence to be used in proceedings taking place before those bodies.

Goldman explained how having access to US-style discovery, including depositions that give lawyers access to witnesses for seven hours of questioning that takes place under oath, can be a game-changer in arbitration. However, it can also undermine the purpose of arbitration, which is intended to be a more efficient method of dispute resolution than going to a court.

“From a lawyer’s perspective, having a witness under oath for seven hours before you get into a courtroom or arbitration hearing is an advantage. But it is also an expense and not typically available in international arbitration,” said Goldman.

The question about the scope of Section 1782 had become increasingly more urgent in recent years, as the number of petitions under the statute had grown rapidly. Section 1782 had proven to be a powerful weapon for those allowed to use it since US courts generally allow for more broad discovery than international arbitration tribunals.

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