28 U.S.C. § 1782 — Eleventh Circuit Withdraws Opinion Holding that Foreign Arbitration Is a “Proceeding” for Which § 1782 Discovery May Be Obtained — But Has It?

Application of Consorcio Ecuatoriano de Telecoms. S.A., 2014 U.S. App. LEXIS 531 (11th Cir. Jan. 10, 2014) (note:  this opinion withdraws the opinion excerpted in our post of June 29, 2012):

We sua sponte vacate the prior opinion in this case, issued on June 25, 2012 and published at 685 F.3d 987 (11th Cir. 2012), and substitute the following opinion in its place.

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The only requirement at issue is the third one -- that the evidence sought must be for use in a proceeding in a foreign or international tribunal. JASE claims that there is no such proceeding. CONECEL advances two independent theories for why there is: that CONECEL wants the evidence for use in reasonably contemplated civil collusion proceedings that it may file against two of its former employees; and that the arbitration between the parties is a proceeding already pending in a foreign tribunal. Because we agree that a proceeding exists under the former theory, we need not address the latter.4

4   We decline to answer this substantial question on the sparse record found in this case. The district court made no factual findings about the arbitration and made no effort to determine whether the arbitration proceeding in Ecuador amounted to a section 1782 tribunal. Two circuits have held that private arbitral tribunals fall outside of the scope of section 1782. See Nat'l Broad. Co. v. Bear Stearns & Co., 165 F.3d 184, 190 (2d Cir. 1999); accord Republic of Kazakhstan v. Biedermann Int'l, 168 F.3d 880, 881 (5th Cir. 1999). However, since then, the Supreme Court has decided Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 258 (2004), where it applied a functional analysis focusing on whether a body acts as a first-instance adjudicative decision maker, permits the gathering and submission of evidence, has the authority to determine liability and impose penalties, and issues decisions subject to judicial review. See id. at 255 & n.9, 257-58. Moreover, in Intel the Court suggested in dicta that "[t]he term 'tribunal' . . . includes investigating magistrates, administrative and arbitral tribunals, and quasi-judicial agencies, as well as conventional civil, commercial, criminal, and administrative courts." 542 U.S. at 258 (alterations in original) (emphasis added) (quoting Hans Smit, International Litigation Under the United States Code, 65 Colum. L. Rev. 1015, 1026 n.71 (1965)). Thus we leave the resolution of the matter for another day.

Editorial Note:  This is not the end of the story.  As reflected in our post of December 22, 2013, the Eleventh Circuit ruled in Republic of Ecuador v. Hinchee, 2013 U.S. App. LEXIS 25102 (11th Cir. Dec. 18, 2013), a decision under 28 USC 1782, as to the scope of the 2010 amendments to the Federal Rules of Civil Procedure.  The Court could not have reached the interpretive issues it addressed without finding that it had jurisdiction to order the requested discovery under Section 1782 -- and the only "proceeding" that the evidence was sought for was a BIT arbitration.  Therefore, the Eleventh Circuit, like the Ninth (Republic of Ecuador v. MacKay, 2014 U.S. App. LEXIS 1972 (9th Cir. Jan. 31, 2014)) and Tenth (In re Application of Republic of Ecuador, 735 F.3d 1179 (10th Cir. 2013)), has implicitly ruled that such an arbitration is an appropriate foreign or international "proceeding" for Section 1782 purposes.

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