In re: Application of EWE Gass v.

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 20-1830
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IN RE: APPLICATION OF EWE GASSPEICHER GMBH FOR AN ORDER,
PURSUANT TO 28 U.S.C. 1782, TO OBTAIN DISCOVERY FOR USE IN A
FOREIGN PROCEEDING
EWE GASSPEICHER GmbH,
Appellant
______________
On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 1-19-mc-00109)
District Judge, Honorable Richard G. Andrews
Argued: December 9, 2020
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Before: MCKEE, PORTER, and FISHER,
Circuit Judges.
(Opinion Filed: June 22, 2022)
Daniel B. Rath
Rebecca L. Butcher
Jennifer L. Cree
Landis Rath & Cobb
919 Market Street
Suite 1800
Wilmington, DE 19801
Timothy P. Harkness [ARGUED]
Olivia Greene
Freshfields Bruckhaus & Deringer
601 Lexington Avenue
31st Floor
New York, NY 10022
Counsel for Applicant-Appellant
Jeffrey S. Bucholtz [ARGUED]
King & Spalding
1700 Pennsylvania Avenue, N.W.
Suite 900
Washington, DC 20006
Elizabeth Silbert
King & Spalding
1180 Peachtree Street, N.E.
Suite 1600
Atlanta, GA 30309
Robert E. Meadows
King & Spalding
1100 Louisiana Street
Suite 4100
Houston, TX 77002
David C. McBride
Anne Shea Gaza
Robert M. Vrana
Samantha G. Wilson
Young Conaway Stargatt & Taylor
Rodney Square
1000 North King Street
Wilmington, DE 19801
Counsel for Respondent-Appellee
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OPINION
______________

This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding
precedent.
2
PER CURIAM
EWE Gasspeicher GmbH (“EWE”) appeals from the District Court’s order
denying discovery under 28 U.S.C. § 1782. In light of the Supreme Court’s recent
decision in ZF Automotive US, Inc. v. Luxshare Ltd., we will affirm. No. 21-401, 2022
WL 2111355 (U.S. June 13, 2022).
I
We write for the parties, so we summarize the facts and procedural history briefly.
EWE, a German company, operates gas storage caverns in Germany. See In re EWE
Gasspeicher GmbH, No. CV 19-MC-109-RGA, 2020 WL 1272612, at *1 (D. Del. Mar.
17, 2020). German companies affiliated with Halliburton Company, an American
multinational, supplied EWE with some safety valves for its caverns. Id. EWE believes
the safety valves it got are defective, so it began contractually-mandated arbitration
proceedings against its German suppliers under the rules of the Deutsche Institution für
Schiedsgerichtsbarkeit (“DIS”), a private dispute-resolution association located in Berlin.
Id.This foreign quarrel arrived on our shores when EWE sought discovery against
Halliburton for use in the private arbitration. EWE relied on section 1782 of the Judicial
Code, which allows U.S. district courts to compel discovery “for use in a proceeding in a
foreign or international tribunal.” 28 U.S.C. § 1782(a). The District Court quashed the
subpoenas against Halliburton and denied discovery because “a private commercial
arbitration is not a ‘tribunal’” under section 1782. EWE, 2020 WL 1272612, at *2 (D.
Del. Mar. 17, 2020).
3
This appeal followed.1
II2
While this appeal was pending, the Supreme Court decided ZF Automotive. In ZF
Automotive, the Supreme Court held that “[p]rivate adjudicatory bodies do not fall within
§ 1782.” 2022 WL 2111355, at *8. Given that holding, our analysis here is
“straightforward.” Id. We must determine whether the arbitration panel is “governmental
or intergovernmental.” Id. ZF Automotive also answers that question. In ZF Automotive,
as in this case, “[p]rivate parties agreed in a private contract that DIS, a private dispute-
resolution organization, would arbitrate any disputes between them.” Id. “No government
is involved in creating the DIS panel or prescribing its procedures.” Id. So as in ZF
Automotive, the private arbitration panel in this case “does not qualify as a governmental
body.” Id. Given that, EWE had no right to seek discovery under section 1782.
* * *
We will affirm the District Court’s order.3
1
We consolidated this appeal with another case that raised the same question. See In re
Application of Storag Etzel GmbH, No. 20-1833 (3d Cir. filed Apr. 24, 2020). That
appeal was later voluntarily dismissed.
2
The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under
28 U.S.C. § 1291.
3
The parties’ motions to file briefs under seal, ECF 39, 45, 50, are granted. See ECF 30.
4