Rather than expressing a view on the issues raised and ably briefed by the parties, amicus submits this brief to inform the Court of the scholarly research she has conducted regarding Section 1782 proceedings since this Court’s seminal decision in Intel. As Section 1782 applications have proliferated, the lower courts have struggled to apply the Intel factors as this Court had envisioned. Especially in the context of Section 1782 applications submitted by parties to an international proceeding (as opposed to those made by the international tribunal itself), lower courts have frequently found themselves unable to analyze and apply the Intel factors. Because applicants often do not notify the international tribunals or the other parties to the international proceedings of their application, the federal courts tasked with adjudicating those applications are unable to conduct an informed assessment of the critical Intel factors addressing whether the international tribunal is receptive to discovery assistance from U.S. courts or whether the request is an effort to circumvent discovery restrictions in the international proceeding. That lack of information is exacerbated by many courts’ practice of placing the burden of proof on the Section 1782 target who is resisting discovery, rather than the applicant. Typically, the discovery target is a nonparty to the international proceeding and is thus poorly positioned or completely unable to provide the information necessary for the lower court’s assessment of the Intel factors.
These practical problems can be solved by two simple clarifications from this Court. First, the Court should clarify that Section 1782 applicants must notify in advance the discovery target, all parties, and all tribunals involved in the international proceedings in which the requested evidence is to be used. Second, the Court should clarify that the Section 1782 applicant bears the burden of proof to establish that the request should be granted under the Intel factors. Both of these requirements are clearly within the Court’s authority, and both are fully consistent with the Federal Rules’ approach to domestic discovery.
Moreover, those two clarifications would resolve many of the policy concerns that appear to animate lower court decisions that have excluded international commercial arbitrations from Section 1782’s reach. By ensuring that discovery targets, the opposing parties, and the international tribunals are notified in advance and have an opportunity to express their views on a Section 1782 application, district courts will be able to deny those applications where the international tribunal itself is not receptive to U.S. discovery. And by placing the burden on the party requesting the discovery, the analysis would weed out weak or abusive applications that might currently be granted simply because some lower courts currently place the burden on a nonparty from whom discovery is sought—who is in a particularly weak position to provide the information required to conduct the Intel analysis.
Ultimately, this approach—of clarifying the Intel factors to require notice and properly placing the burden on the applicant—is a far preferable way to prevent misuse of Section 1782 than drawing an artificial and ill-defined line between “public” and “private” arbitrations. Indeed, that line does not stand up to the reality of modern international arbitration. On the contrary, because virtually all international arbitration is conducted within the framework of international treaties or other intergovernmental agreements, the line between “public” and “private” arbitral proceedings is an illusory one. Any effort to articulate such a line would illogically exclude many commercial arbitrations from Section 1782’s reach while leaving materially indistinguishable proceedings—such as investor-state arbitrations—within the statute’s bounds. The more logical and practical approach, in light of the years of experience since Intel, is to clarify and strengthen the Intel analysis for all Section 1782 proceedings.
Civil procedure, transnational litigation, private international law, public international law, discovery, evidence, international arbitration, Supreme Court of the United States, SCOTUS, Intel Corp. v. Advanced Medical Devices, Inc., 28 U.S.C. § 1782
Wang, Yanbai Andrea and McGinley, Michael H., "Servotronics, Inc. v. Rolls-Royce PLC and The Boeing Company: Brief of Professor Yanbai Andrea Wang as Amicus Curiae in Support of Neither Party" (2021). Faculty Scholarship at Penn Carey Law. 2310.