The foreign tribunal has jurisdiction over the parties appearing before it, and can order them to comply with discovery, while it might not be able to exercise that same power over non-parties and would need the assistance of a statute like § 1782. (124 S. Ct. 2466, 2471). Both Wal-Co and Expert Builders are parties in the foreign proceeding, which has the power to grant broad discovery to either party, therefore the Court would lack a compelling reason to grant the discovery request.
In this instance, there is a pending complaint with the I.C.C. However, Expert Builders would not have had to file a complaint in order to seek a discovery order. Instead, § 1782 is applicable when a dispositive ruling by a tribunal is within reasonable contemplation. (124 S. Ct. 2466, 2468). That means that the proceeding with the I.C.C. almost certainly meets § 1782's requirements for a proceeding.
Furthermore, the District Court does not attempt to impose U.S. discovery rules upon the foreign tribunals. In fact, purpose of § 1782 is to aid the foreign tribunals in their attempts to get at discoverable information. The courts do not try to determine whether the evidence sought would be discoverable under the laws governing those foreign proceedings (124 S. Ct. 2466, 2468). Nor do they attempt to determine whether that information would be discoverable under U.S. laws (124 S. Ct. 2466, 2468).
However, the statute does specifically prohibit the discovery of privileged information, which is relevant because Expert Builders is seeking information about the communication between Wal-Co and its attorneys. This issue is not critical when trying to determine whether the court should hear the petition, but it can be considered. When making a ruling on a request for domestic discovery in a foreign proceeding, the district court can look at whether the request is an attempt to circumvent the rules of evidence or other proof-gathering restrictions of the foreign jurisdiction or the United States (124 S. Ct. 2466, 2471). Courts can reject unduly burdensome requests (124 S. Ct. 2466, 2471). Furthermore, the Court may consider whether the party has attempted to first obtain discovery in the foreign jurisdiction. (583 F.Supp.2d 233, 241). Taking all of these factors together, the Court should be suspicious that Expert Builders is attempting to use § 1782 discovery as a fishing expedition in contravention of domestic and international rules of discovery.
While the above issues are of interest in helping the court determine whether or not it should consider the petition, the real question at issue is whether the International Chamber of Commerce (ICC) in Paris is a tribunal under § 1782. Whether or not a private arbitration committee qualifies as a tribunal is a matter of some disagreement among the circuits. The Supreme Court has previously determined that the Commission of the European Communities is a "tribunal" under 28 U.S.C.S. § 1782(a), because it is a first-instance decisionmaker (124 S. Ct. 2466, 2470). Furthermore, in re: Application of Babcock Borsig AG for Assistance before a Foreign Tribunal, 583 F.Supp.2d 233 (2008), the U.S. District Court for the District of Massachusetts determined that Private, foreign arbitral body, operated by International
Chamber of Commerce, qualified as "tribunal" within meaning of federal statute providing for assistance to foreign and international tribunals and litigants before such tribunals.
(583 F.Supp.2d 233, 238-9).
However, these decisions are not unanimous. In La Comision Ejecutia Hidroelecctrica Del Rio Lempa v. El Paso Corp., 617 F.Supp.2d 481 (S.D. TX, 2008), the Court determined that Statute authorizing district courts to assist discovery efforts of litigants before foreign and international tribunals did not extend to arbitral tribunals. (617 F.Supp.2d 481, 483). That court was not seeking to overrule Intel; instead, it argued that "The Supreme Court in Intel shed no light on the issue. In fact, the Supreme Court has not addressed the application of § 1782 to arbitral tribunals, not even in dicta. Intel never mentions arbitral tribunals in the text of the opinion itself." (617 F.Supp.2d 481, 485). Therefore, the court concluded that, "An arbitral tribunal exists as a parallel source of decision-making to, and is entirely separate from, the judiciary, which was not the case with the D-G Competition as the Court was at pains to point out in Intel.(617 F.Supp.2d 481, 485-6).
The United States Court of Appeals for the Second Circuit agreed with that decision. In National Broadcasting Co. Inc. v. Bear Stearns & Co., Inc., 165 F.3d 184 (2nd Cir.1999), the Court agreed that the "Statute authorizing district courts to assist discovery efforts of litigants before "foreign or international tribunals" does not apply to proceedings before private arbitral panels." (165 F.3d 184, 185). In fact, that court held that the authors of § 1782 "had in mind only governmental entities, such as administrative or investigative courts, acting as state instrumentalities or with the authority of the state. (165 F.3d 184, 185). In fact, the court felt that "the absence of any reference to private dispute resolution proceedings such as arbitration strongly suggests that Congress did not consider them in drafting the statute (165 F.3d 184, 185).
The reasoning in La Comision Ejecutia Hidroelecctrica Del Rio Lempa v. El Paso Corp., is compelling. The I.C.C. is not a tribunal as its decision-making ability is separate from the judiciary. Had the parties intended their dispute-resolution to be subject to the rules of § 1782, they could have agreed for their disputes to be settled by a court, even a court in a foreign jurisdiction, rather than by an arbitrator.
The party's request for discovery documents does not meet the statutory requirements of 28 U.S.C.S. § 1782, so that it can be entertained by the Court, because the I.C.C. is a private arbitrating panel, not a tribunal under the terms of § 1782.
28 U.S.C.S. § 1782 (a).
In re: Application of Babcock Borsig AG for Assistance before a Foreign Tribunal, 583
F.Supp.2d 233 (D. Mass. 2008).
Intel Corporation v. Advanced Micro Devices, 124 S. Ct. 2466 (2004).