Law360 has published “Using Int'l Discovery Statute After High Court Limits Its Scope” by Akin Gump litigation partner Anthony Pierce and associate Allison Coffin.  

The article discusses foreign litigants’ use of U.S.-based discovery procedures pursuant to Section 1782 of the U.S. Code, as well as the U.S. Supreme Court’s holding in ZF Automotive US Inc. v. Luxshare Ltd. and AlixPartners LLP v. The Fund for Protection of Investors' Rights in Foreign States, to the effect that Sec. 1782 is not available in support of foreign private international arbitration proceedings.

Instead, according to the authors, the Court “articulated that Section 1782 is only available for use in arbitration proceedings before either a body that ‘exercises governmental authority conferred by a single nation’ or an international tribunal, which two or more nations must bestow with governmental authority.”

They note that this decision “undoubtedly limits the types of foreign proceedings for which foreign litigants may obtain Section 1782 discovery,” but that this section of the law remains available for a large number of litigants. The article then examines the current framework employed by various courts in evaluating requests for discovery pursuant to Sec. 1782.