With at least some United States district courts willing to consider discovery assistance to foreign arbitral tribunals, developments in the law concerning such discovery are of considerable interest.
Some recent U. S. cases deserve mention.
In Marubeni Am. Corp. v LBA Y.K., 2009 U.S. App. LEXIS 12953 (2d Cir. June 19, 2009), the federal appeals court in New York affirmed a district court’s order granting a request to obtain discovery from a non-party witness, made by a party to litigation pending in Japan. In Marubeni, the party opposing discovery argued that the district court had abused its discretion by granting the discovery, because that court allegedly did not consider whether the discovery request was a circumvention of evidence-gathering rules in the Japanese court. The appellate court rejected this contention, and said that even though the record did not reflect whether the information sought was discoverable in the Japanese system, the U. S. Supreme Court in the Intel case expressly declined impose a requirement of discoverability in the foreign jurisdiction. (Intel Corp. v. Advanced Micro Devices, 542 U. S. 241 (2004)).
It is interesting to compare the Marubeni outcome to the decision of a district court in Indiana, in In re Kutzer, 2009 U. S. Dist. LEXIS 29771 (N. D. Ind. Apr. 8, 2009). In Kutzer, the applicant was a defendant in a recently-filed patent infringement action in Germany, and was seeking discovery from the plaintiff in that case. Applying the Intel discretionary factors, the court denied discovery assistance, holding that the party appeared to be seeking to circumvent discovery procedures applicable in the German court. Clearly applicants for U.S. discovery assistance face a more difficult road when they seek discovery from a party to the foreign action. Here the district court judge pointed out that German civil procedure did provide for some discovery from the opposing party, although perhaps not as broadly as in the U.S. system. The court took exception to the applicant’s decision to seek discovery through the U.S. courts before even testing whether adequate information could be obtained through the procedures in the German court.
A third notable decision, Norfolk Southern Corp. v. Gen. Sec. Ins. Co., 2009 U. S. Dist. LEXIS 49827 (N. D. Ill June 15, 2009), is one of minority of federal district court decisions after Intel to hold that Section 1782 does not apply to arbitral tribunals created pursuant to a private contractual agreement. This federal district judge in Chicago read Intel to support the view that, for an administrative or arbitral body may be a “tribunal” under Section 1782, its decisions must be subject to judicial review — as were the decisions of the entity involved in the Intel case, the Directorate-General for Competition of the European Community.