Domestic Discovery for Foreign Arbitrations? – Now It’s the Supreme Court’s Turn

March 23, 2021 Alerts and Newsletters

In two earlier posts, I described the Circuit split over the question of whether a foreign private arbitration panel is a “foreign or international tribunal” for purposes of 28 U.S.C. § 1782. (Read: Domestic Discovery for Foreign Arbitrations? Now Three Circuits Say “No” and Domestic Discovery for Foreign Arbitrations? Location, Location, Location!) The statute allows United States District Courts to enter orders allowing discovery for use in such tribunals from parties “found” in the District. With a number of Circuits on either side of the issue, the split was highlighted on September 22, 2020, when the Seventh Circuit, in Servotronics, Inc. v. Rolls-Royce PLC, 975 F.3d 689 (7th Cir., 2020), held that discovery under § 1782 is not available to a party in a proceeding before a foreign private arbitration panel. The Seventh Circuit disagreed with an earlier decision by the Fourth Circuit holding that discovery under § 1782 was available to the very same party to the very same foreign arbitration. 954 F.3d 209 (4th Cir., 2020. Servotronics wanted to depose witnesses who were “found” in the District of South Carolina, which the Fourth Circuit approved, but it also wanted documents from custodians “found” in the Northern District of Illinois, which the Seventh Circuit nixed.

Given what must be the clearest Circuit split ever, it’s hardly surprising that the Supreme Court granted Servotronics’ petition for certiorari on March 22, 2021. Whether the Court can rule before the arbitration is concluded, and, if not, whether that will result in a dismissal for mootness, remains to be seen. Another issue lurking in the background is that Justice Alito took no part in the consideration or decision on Servotronics’ cert petition. Assuming that the reason he did not participate in the cert decision will require his recusal from deciding the case on the merits, there is a possibility of a four-to-four Supreme Court decision. The Seventh Circuit’s ruling would be affirmed by an equally divided Court, but the decision would lack precedential value. Servotronics would get the depositions it seeks but not the documents, and the issue that created the Circuit split would have to wait for another day and another Supreme Court case to be resolved.

Firm Highlights

Publication/Podcast

Finding Teeth in Massachusetts' Prompt Payment Act

In Tocci v. IRIV Partners, LLC, Boston Harbor Industrial Development LLC and Hudson Insurance Co. (November 19, 2020, Sup. Ct. 19-405), the Massachusetts Superior Court granted summary judgment on a contractor’s breach of contract...

Publication/Podcast

Make Your Own Law with Tom Bean

On March 2, attorney Tom Bean appeared on a Pod617 - The Boston Podcast Network episode, "Make Your Own Law with Tom Bean." He discusses what it takes to get a proposed law on...

Matter

Patent & Trade Secret Litigation: IT Infrastructure Software

Represented large provider of IT management solutions in lawsuits in U.S. District Courts for the Eastern District of New York and the Northern District of California against competitor alleging infringement of patents relating to...

Matter

Patent Litigation: Semiconductors

Represented semiconductor manufacturer in patent case against competitor in litigation in U.S. District Court for the District of Delaware, in which both sides asserted patents relating to power management and A-D converters; conducted Markman...

Matter

Patent Litigation: Mesenchymal Stem Cells

Represented small biotech company and two academic researchers against large pharmaceutical company in dispute over inventorship of several patents relating to mesenchymal stem cells and their uses, as well as defending against numerous state...

Matter

Patent Litigation: NPEs

Represented many companies over the years in patent litigations brought by numerous non-practicing entities, including in U.S. District Courts for the Eastern District of Texas, District of Delaware and Northern District of California; aggressively...

Publication/Podcast

The Massachusetts Supreme Judicial Court Clarifies the Contours of the Attorney-Client Privilege and Work Product Doctrine in Internal Investigations

In Attorney General v. Facebook, Inc. , No. SJC-12496 (March 24, 2021), [i] the Massachusetts Supreme Judicial Court clarified the scope of protection afforded by the attorney-client privilege and the work product doctrine to...

Matter

Patent Litigation: MEMS Microphones

Represented large semiconductor manufacturer in an ITC investigation and parallel district court proceeding in U.S. District Court for the Northern District of Illinois, defending against two patents owned by a competitor relating to microelectromechanical...

News

65 Verrill Attorneys Recognized by Best Lawyers® 2022, Including Eight Named Lawyers of the Year

(August 31, 2021) – 65 Verrill attorneys were recognized as "Best Lawyers" by Best Lawyers® 2022 , including 8 attorneys named “Lawyer of the Year,” a distinguished recognition for only a single lawyer in...

Matter

Patent Litigation: Telecommunications

Defended large telecommunication company in patent litigation in U.S. District Court for the Northern District of Texas brought by a competitor over eight patents relating to encryption, unified communications, messaging, and audio and video...

Contact Verrill at (855) 307 0700