As we’ve previously written (most recently here), 28 U.S.C. § 1782 is a useful federal statute that allows overseas litigants to obtain discovery through U.S. federal courts for use in the overseas litigation.  With respect to adjudication of Section 1782 applications, some federal courts have disagreed about whether such are “dispositive” or “non-dispositive” matters when the application is decided by a federal magistrate judge, as opposed to a federal district judge.  The distinction is relevant because federal district judges review magistrate judges’ reports and recommendations on “dispositive” matters de novo, but review magistrate judges’ rulings on “non-dispositive” matters only to determine whether the ruling was clearly erroneous or contrary to law.[1]

In a recent decision, the Ninth Circuit Court of Appeals held that Section 1782 applications are “dispositive” for purposes of a magistrate judge’s ruling on the issue.[2] The Ninth Circuit reasoned that the matter was “dispositive” because “the magistrate judge’s order denied the only relief sought by [the applicant] in this federal case: court-ordered discovery.” The court distinguished the situation from the types of discovery matters typically heard by a magistrate judge because those discovery matters are usually in the context “of an ongoing civil case in that same federal court for monetary damages, injunctive relief, or the like.” In the Section 1782 context, however, there is no ongoing federal civil case: the Section 1782 application is the only relief sought in, and the only purpose for having commenced, the action.[3]Continue Reading Ninth Circuit Weighs In On Section 1782 Issue That Has Split Federal Courts

The federal statute 28 U.S.C. §1782 allows litigants in a foreign proceeding to obtain discovery in the United States, under the broad US discovery rules, for use in such proceedings. Although Section 1782’s use has been expanding (which you can read about here) and has been applied even to documents held overseas (which you can read about here and here), there was a split in authority regarding whether the statute was broad enough to permit US courts to authorize discovery for use in private arbitrations overseas. The Fourth and Sixth Circuit courts of appeals held that it was broad enough to cover private arbitrations, while the Second, Fifth and Seventh Circuits held that the statute does not extend to private arbitrations. On June 13, 2022, the US Supreme Court resolved the split and sided with the courts holding that the statute does not extend to private arbitrations overseas.¹
Continue Reading US Supreme Court Clarifies the Scope of 28 U.S.C. § 1782