In re Application to Obtain Discovery for Use in Foreign Proceedings

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0246p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
IN RE: APPLICATION TO OBTAIN DISCOVERY FOR USE IN ┐
FOREIGN PROCEEDINGS. │
___________________________________________ │
ABDUL LATIF JAMEEL TRANSPORTATION COMPANY │
> No. 19-5315
LIMITED, │
Movant-Appellant, │
│
v. │
│
│
FEDEX CORPORATION, │
Respondent-Appellee. │
┘
Appeal from the United States District Court for
the Western District of Tennessee at Memphis.
No. 2:18-mc-00021—Jon Phipps McCalla, District Judge.
Argued: August 8, 2019
Decided and Filed: September 19, 2019
Before: COLE, Chief Judge; GRIFFIN and BUSH, Circuit Judges.
_________________
COUNSEL
ARGUED: David Livshiz, FRESHFIELDS BRUCKHAUS DERINGER, US LLP, New York,
New York, for Appellant. Daniel T. French, FEDERAL EXPRESS CORPORATION,
Memphis, Tennessee, for Appellee. ON BRIEF: David Livshiz, Linda H. Martin, Paige von
Mehren, FRESHFIELDS BRUCKHAUS DERINGER, US LLP, New York, New York, Shea
Sisk Wellford, MARTIN, TATE, MORROW & MARSTON, P.C., Memphis, Tennessee, for
Appellant. Daniel T. French, Colleen Hitch Wilson, FEDERAL EXPRESS CORPORATION,
Memphis, Tennessee, for Appellee.
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_________________
OPINION
_________________
JOHN K. BUSH, Circuit Judge. Thomas Jefferson once counseled his nephew Peter Carr
on how to think: “Fix reason firmly in her seat, and call to her tribunal every fact, every
opinion.”1 This case calls upon us to do just that. We must decide whether Abdul Latif Jameel
Transportation Company Limited (“ALJ”), a Saudi corporation, may rely on 28 U.S.C. § 1782(a)
to discover facts from FedEx Corporation (“FedEx Corp.”), a U.S.-based corporation, for use in
a commercial arbitration pending in a foreign country. Under § 1782(a), a federal district court
may order discovery “for use in a proceeding in a foreign or international tribunal” upon
application by “any interested person.” Jefferson used the word “tribunal” in a metaphorical
sense to refer to the mind. We must decide whether Congress used the words “foreign or
international tribunal” in a literal sense that includes the commercial arbitration involved here.
In its § 1782(a) discovery application, ALJ sought a subpoena for documents from FedEx
Corp. and deposition testimony of a corporate representative of that company. ALJ alleges that
FedEx Corp. was involved in contract negotiations and performance of two contracts between
ALJ and FedEx International Incorporated (“FedEx International”), a subsidiary of FedEx Corp.
Each contract became the subject of a commercial arbitration, one pending in Dubai in the
United Arab Emirates (“UAE”), the other brought in the Kingdom of Saudi Arabia. As
explained below, we only address the availability of discovery for the Dubai arbitration because
the arbitration in Saudi Arabia was dismissed, rendering moot ALJ’s application as it pertains to
this latter proceeding.
The district court denied ALJ’s application, holding that the phrase “foreign or
international tribunal” in § 1782(a) did not encompass either of the two arbitrations. ALJ now
appeals, arguing that the phrase “foreign or international tribunal” does include such proceedings
and that ALJ’s discovery request should be granted.
1Letter from Thomas Jefferson to Peter Carr (Aug. 10, 1787), in 12 The Papers of Thomas Jefferson 14, 15
(Julian P. Boyd ed., 1955).
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The interpretive question is an issue of first impression in the Sixth Circuit, although the
Supreme Court provided guidance for interpretation of § 1782(a) in Intel Corp. v. Advanced
Micro Devices, Inc., 542 U.S. 241 (2004). Upon careful consideration of the statutory text, the
meaning of that text based on common definitions and usage of the language at issue, as well as
the statutory context and history of § 1782(a), we hold that this provision permits discovery for
use in the private commercial arbitration at issue. Accordingly, we REVERSE the district
court’s denial of ALJ’s application and REMAND for the district court to determine, in the first
instance, whether the application should be granted under four discretionary factors the Supreme
Court outlined in Intel to guide that determination.
I. BACKGROUND
A. The Dispute Between ALJ and FedEx International
This dispute over statutory linguistics arises from supply-chain logistics. In 2014, after a
period of negotiations, FedEx International entered a “General Service Provider” (“GSP”)
contract with ALJ. Under that contract (which was amended in 2015), ALJ agreed to be FedEx
International’s delivery-services partner in Saudi Arabia, where ALJ is incorporated. By
agreement of the parties, disputes relating to the GSP were to be arbitrated in Dubai under the
rules of the Dubai International Financial Centre-London Court of International Arbitration
(“DIFC-LCIA”).
In 2016, FedEx International and ALJ entered another contract, the Domestic Service
Agreement (“DSA”), under which FedEx International promised to provide ALJ with “certain
support services.” R. 3, PageID 38. Those parties also agreed to arbitrate disputes arising under
the DSA in Saudi Arabia under the rules and laws of that country.
After FedEx International and ALJ signed the GSP contract but before they entered the
DSA, FedEx Corp.—the parent of FedEx International and appellee in this case—acquired TNT
Express N.V. (“TNT”), a competitor in the delivery-services market in Saudi Arabia. According
to ALJ, it did not become aware of the acquisition until it was already fait accompli.
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The parties disagree in part about the causes of the underlying dispute. ALJ suggests that
FedEx Corp. was significantly involved in luring ALJ into a contractual relationship with FedEx
International. ALJ also indicates that FedEx Corp. and FedEx International kept ALJ in the dark
about the impending TNT acquisition. According to ALJ, when it learned of the TNT
acquisition, FedEx Corp. and FedEx International misled ALJ to believe that the future of its
contractual relationship with FedEx International was secure. ALJ contends that, for several
weeks during the fall of 2017, FedEx International failed to provide ALJ with the support
promised in the DSA. Then, “without warning,” according to ALJ, FedEx International
announced that it would not be renewing the GSP contract and that ALJ would have to bid
against other potential contractors if it wanted to keep working with FedEx International.
Appellant Br. at 10.
FedEx Corp. responds that ALJ’s brief overstates, and makes false assertions about,
FedEx Corp.’s involvement in the negotiations and communications between FedEx
International and ALJ. Additionally, FedEx Corp. disagrees that FedEx International was at fault
in causing the ALJ-FedEx International rift. According to FedEx Corp., the trouble between
ALJ and FedEx International started when ALJ began providing unsatisfactory service; FedEx
International sought to work with ALJ but eventually gave up and decided to open up ALJ’s
position as FedEx International’s general service partner in Saudi Arabia to bidding among
various applicants.
These factual disputes aside, ALJ and FedEx Corp. agree that attempts to reconcile soon
broke down completely. On March 4, 2018, ALJ commenced arbitration against FedEx
International (the “Saudi Arbitration”) before a panel constituted under the rules and laws of
Saudi Arabia, as provided in the DSA. A few weeks later, on March 21, FedEx International
commenced arbitration against ALJ (the “DIFC-LCIA Arbitration”) before a panel constituted
under the rules of the DIFC-LCIA, as provided in the GSP contract.
The DIFC-LCIA Arbitration panel consists of three members appointed by the DIFC-
LCIA Arbitration Centre. According to FedEx Corp., the DIFC-LCIA Arbitration Centre is a
joint venture of the London Court of International Arbitration and the DIFC Arbitration
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Institute.2 The DIFC Arbitration Institute, in turn, was established by statute in the emirate of
Dubai. Awards of the arbitral panel are reviewable by the DIFC Court, which was also
established by statute in Dubai. The DIFC Court reviews arbitral awards for procedural
soundness under the DIFC Arbitration Law, which was promulgated by the Dubai government.
In addition, if a party challenges an award alleging inconsistency with UAE public policy, the
award is reviewed under the law of the UAE. Aside from these review provisions, however,
awards of the panel are binding on the parties. A merits hearing in the pending DIFC-LCIA
Arbitration between ALJ and FedEx International is currently scheduled for November 3–9,
2019.
As for the makeup and operations of the Saudi Arbitration panel, we do not go into
details because on April 30, 2019 (shortly after ALJ filed this appeal), that panel issued an award
dismissing ALJ’s claims. ALJ has challenged the dismissal and is awaiting a decision. Below,
in section II(A), we explain why the dismissal of the Saudi Arbitration has rendered moot the
issues in this appeal as they pertain to that arbitration proceeding.
B. Procedural History of ALJ’s § 1782(a) Discovery Application
On May 14, 2018, ALJ filed an application for discovery under 28 U.S.C. § 1782(a)
against FedEx Corp. in the United States District Court for the Western District of Tennessee,
the federal district where FedEx Corp. is headquartered. In the application, ALJ sought to
compel production of documents from FedEx Corp. and to subpoena deposition testimony from a
corporate representative of FedEx Corp. Although FedEx Corp. was not a party to either of
ALJ’s contracts with FedEx International, ALJ sought, among many other pieces of information:
1. All Documents and Communications concerning the negotiations of the
Agreements between FedEx Corp. or FedEx International, on the one hand, and
ALJ, on the other hand.
2. All Documents or Communications concerning or reflecting (i) any
representations, assertions or assurances provided by FedEx Corp. or FedEx
International, or any agent thereof, to ALJ, or any agent thereof, concerning the
length of the Agreements, or FedEx Corp. or FedEx International’s intent to enter
into a long-term business relationship with ALJ; and (ii) all any [sic] knowledge
2FedEx Corp. provided some of these details at oral argument, and they are undisputed.
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or awareness on the part of FedEx Corp. or FedEx International of ALJ’s need to
make investments in connection with ALJ’s agreed-upon provision of services to
FedEx International.
R. 1-3, PageID 16.
The district court held a hearing on ALJ’s application on July 17, 2018, and it denied the
application in an order dated March 13, 2019. In its order, the district court determined that
neither the Saudi Arbitration panel nor the DIFC-LCIA Arbitration panel constituted a “foreign
or international tribunal” within the meaning of § 1782(a). Therefore, the district court held that
ALJ could not, as a matter of law, obtain discovery for use in those proceedings under § 1782(a).
The district court did not consider whether it would have exercised its discretion to grant ALJ’s
application under § 1782(a) had it determined that either arbitration panel was a “foreign or
international tribunal.”
ALJ timely filed a notice of appeal, and on April 12, 2019, it moved this court to expedite
the appeal in light of the pending arbitration proceedings. On April 22, 2019, we ordered an
expedited briefing and argument schedule.
II. DISCUSSION
A. Whether the Saudi Arbitration Discovery Dispute is Justiciable
Before turning to the statutory interpretation inquiry, we must address a justiciability
issue with regard to the Saudi Arbitration. As noted, that proceeding has been dismissed, and
ALJ is appealing the dismissal. FedEx Corp. argues that because the Saudi Arbitration is no
longer pending, it “is irrelevant to ALJ’s § 1782 motion.” Appellee Br. at 9–10. Therefore,
FedEx Corp. focuses its substantive arguments on the DIFC-LCIA Arbitration only.
In response, ALJ argues that if we determine that the question regarding the Saudi
Arbitration is moot and inappropriate for merits consideration, we should vacate the district
court’s denial of the § 1782(a) application with respect to that arbitration. ALJ worries that the
Saudi Arbitration panel’s dismissal may be reversed by a Saudi court and that if we do not
bifurcate the district court’s judgment and vacate as moot with respect to the Saudi Arbitration,
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the district court’s reasoning as to that proceeding will stand and will preclude ALJ from
bringing a future application.
We agree that the dismissal of the Saudi Arbitration makes the interpretive question moot
with respect to that arbitration. Therefore, it would be inappropriate for us to make a merits
ruling on the question presented as it pertains to the Saudi Arbitration panel. See Church of
Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992). But ALJ’s preclusion fears are
unfounded. ALJ brought one § 1782(a) application in the district court, relying on both the
DIFC-LCIA Arbitration and the Saudi Arbitration as “foreign or international tribunal[s]” that
would trigger the statute’s applicability. And the district court entered one judgment rejecting
both of ALJ’s proffered reasons for needing discovery. Our conclusion that the DIFC-LCIA
Arbitration panel is a “foreign or international tribunal” is sufficient for us to reverse that
judgment and require the district court to consider ALJ’s application anew. Therefore, we need
not address the Saudi Arbitration, but the district court’s judgment will not remain in place, so
that judgment will not preclude a future application should ALJ want to bring one. See Dodrill
v. Ludt, 764 F.2d 442, 444 (6th Cir. 1985) (noting that “the general rule is that a judgment which
is vacated, for whatever reason, is deprived of its conclusive effect as collateral estoppel” as to
all of the issues litigated and decided in the action (emphasis added) (citations omitted)); see
generally id. at 444–45 (discussing and applying the rule).
B. Whether the DIFC-LCIA Arbitration Panel is a “Foreign or International Tribunal”
We must now determine whether the DIFC-LCIA Arbitration panel qualifies as a
§ 1782(a) “foreign or international tribunal.” Neither the phrase “foreign or international
tribunal” nor the word “tribunal” is defined in the statute, and the parties dispute whether the
word “tribunal” includes a privately contracted-for commercial arbitration. The district court
concluded that it does not.
We review the district court’s decision on a question of statutory interpretation—a legal
question—de novo. See United States v. Kassouf, 144 F.3d 952, 955 (6th Cir. 1998). “In
determining the meaning of a statutory provision, we look first to its language, giving the words
used their ordinary meaning.” Artis v. District of Columbia, 138 S. Ct. 594, 603 (2018) (citation
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and internal quotation marks omitted). And ordinary meaning is to be determined
retrospectively: we must go back to “the time Congress enacted the statute” and discern its
meaning from that point in the past. See New Prime Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019)
(citations omitted); see also Wisc. Cent. Ltd. v. United States, 138 S. Ct. 2067, 2070 (2018).
Thus, we can sometimes determine the ordinary meaning of words in a statute by
reference to dictionaries in use at the time the statute was enacted. See Food Marketing Inst. v.
Argus Leader Media, 139 S. Ct. 2356, 2363–64 (2019). Here, the relevant language was added
to § 1782(a) by amendment in 1964, see Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S.
241, 248–49 (2004), so we may consult dictionaries in use at that time. In addition, we may
consult subsequently published dictionaries. See Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 419 (“Scalia & Garner, Reading Law”) (“Dictionaries
tend to lag behind linguistic realities . . . .”). However, we use later-published dictionaries
carefully and would hesitate to rely upon definitions appearing solely in dictionaries published
more than a decade or so after the statute’s enactment.
We also may consider other evidence of usage in the years preceding the enactment: for
example, the sense in which courts used a particular word or phrase. See New Prime, 139 S. Ct.
at 540 (looking to early-20th-century cases’ use of the term “contract of employment” as an aid
to determining the meaning of that phrase in a 1925 statute); see also Argus Leader Media, 139
S. Ct. at 2363. As a respected treatise on statutory interpretation notes, the context of a statute’s
text includes “a word’s historical associations acquired from recurrent patterns of past usage.”
Scalia & Garner, Reading Law 33.
Of course, linguistic meaning of words may not always equate to statutory meaning if the
structure of the statute suggests something else. Words “must be read in their context and with a
view to their place in the overall statutory scheme.” Davis v. Mich. Dep’t of Treasury, 489 U.S.
803, 809 (1989) (citation omitted); see also Nat’l Air Traffic Controllers Ass’n v. Sec’y of Dep’t
of Transp., 654 F.3d 654, 657 (6th Cir. 2011) (“Plain meaning is examined by looking at the
language and design of the statute as a whole.” (citation omitted)). But if an examination of the
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statute’s text, context, and structure produces an answer to our interpretation question, we need
inquire no further. See Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004).
Applying these principles here, we address the statute in which the operative language—
“foreign or international tribunal”—appears. Section 1782 provides:
(a) The district court of the district in which a person resides or is found
may order him to give his testimony or statement or to produce a document or
other thing for use in a proceeding in a foreign or international tribunal,
including criminal investigations conducted before formal accusation. The order
may be made pursuant to a letter rogatory issued, or request made, by a foreign or
international tribunal or upon the application of any interested person and may
direct that the testimony or statement be given, or the document or other thing be
produced, before a person appointed by the court. By virtue of his appointment,
the person appointed has power to administer any necessary oath and take the
testimony or statement. The order may prescribe the practice and procedure,
which may be in whole or part the practice and procedure of the foreign country
or the international tribunal, for taking the testimony or statement or producing
the document or other thing. To the extent that the order does not prescribe
otherwise, the testimony or statement shall be taken, and the document or other
thing produced, in accordance with the Federal Rules of Civil Procedure.
A person may not be compelled to give his testimony or statement or to
produce a document or other thing in violation of any legally applicable privilege.
(b) This chapter does not preclude a person within the United States from
voluntarily giving his testimony or statement, or producing a document or other
thing, for use in a proceeding in a foreign or international tribunal before any
person and in any manner acceptable to him.
28 U.S.C. § 1782 (emphasis added).
As an initial matter, it is important to note that we have no evidence that the phrase
“foreign tribunal” or the phrase “international tribunal” is a term of art. We have located no
dictionary that defines either phrase.3 See New Prime, 139 S. Ct. at 539 (noting that the absence
of dictionary definitions for the term “contract of employment” in 1925 was “a first hint the
phrase wasn’t then a term of art bearing some specialized meaning”). And we have found no
other evidence that either phrase is a term of art with a specialized meaning.
3We consulted Merriam-Webster’s Dictionary of Law (1996); Bryan A. Garner, A Dictionary of Modern
Legal Usage (2d ed. 1995); Ballentine’s Law Dictionary (William S. Anderson ed., 3d ed. 1969); and Black’s Law
Dictionary (4th ed. 1957).
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We note also that there is no dispute that the DIFC-LCIA arbitration is “foreign or
international” in nature.4 Thus, we focus on the meaning of “tribunal,” which is hotly disputed.5
1. Dictionary Definitions
To determine the meaning of “tribunal,” we turn first to dictionary definitions. There is
dictionary support for ascribing a meaning that includes private arbitral panels. For example,
several reputable legal dictionaries contain definitions of “tribunal” broad enough to include
private arbitrations. See Merriam-Webster’s Dictionary of Law (1996) (“a court or forum of
justice: a person or body of persons having to hear and decide disputes so as to bind the parties”);
Bryan A. Garner, A Dictionary of Modern Legal Usage (2d ed. 1995) (“(1) ‘a court or other
adjudicatory body[]’ . . . . In its most usual application—sense (1)—tribunal is broader than
court and generally refers to a body, other than a court, that exercises judicial functions . . . .”);
cf. Max Radin, Law Dictionary (1955) (“A general word equivalent to court, but of more
4Furthermore, we have no reason to doubt that the phrase “foreign or international” has a broad meaning
that, at minimum, encompasses a proceeding like the DIFC-LCIA Arbitration that is taking place abroad and is not
subject to United States laws or rules. For instance, consider the following definitions of “foreign”: Webster’s New
World College Dictionary (3d ed. 1997) (“1. Situated outside one’s own country, province, locality, etc. . . . . 4. Not
subject to the laws or jurisdiction of the specified country.”); Merriam-Webster’s Dictionary of Law (1996) (“Not
being within the jurisdiction of a political unit (as a state); esp: being from or in a state other than the one in which a
matter is being considered . . . .”); The Oxford English Dictionary (2d ed. 1989) (“7. Situated outside the country;
not in one’s own land.”); Webster’s Third New International Dictionary (1961) (“1. Situated outside a place or
country: as (a) situated outside one’s own country . . . . 8.(a) not being within the sphere of operation of the laws of
a country under consideration—opposed to domestic . . . .”); cf. Ballentine’s Law Dictionary (3d ed. 1969)
(“Belonging to another nation or country.”). And consider the following definitions of “international”: Webster’s
New World College Dictionary (3d ed. 1997) (“4. Of, for, or by people in various nations.”); The Random House
Dictionary of the English Language (2d ed. unabridged 1987) (“2. Of or pertaining to two or more nations or their
citizens . . . .”); The American Heritage Dictionary of the English Language (1969) (“Of, relating to, or involving
two or more nations or nationalities . . . .”); Ballentine’s Law Dictionary (William S. Anderson ed., 3d ed. 1969)
(“A characterization in a general manner of business or transactions between nations or between persons of different
nations.”); Webster’s Third New International Dictionary (1961) (“1. Existing between or among nations or their
citizens . . . .”). Because the question is not before us, we need not decide whether the DIFC-LCIA Arbitration
panel is most aptly described as only “foreign,” only “international,” or both.
5We would be remiss if we did not note that both parties agree that the meaning of “tribunal” in § 1782(a)
is not limited to “court”—the narrower of the two definitions we will discuss. Furthermore, the Supreme Court’s
decision in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), which we will also discuss later,
applied the statute to a proceeding before a non-judicial entity. The Supreme Court seems to have thus implicitly
rejected the narrower definition of the word. However, FedEx Corp. argues that the word is limited to government-
sponsored entities and excludes private arbitration. Thus, for the sake of thoroughness, we will explain in section
II(B)(2) why American courts’ use of the word indicates both that the broader definition applies and that the word
includes private arbitral proceedings. Below, in sections II(B)(4)(b) and II(B)(5)–(6), we will discuss FedEx Corp.’s
counterarguments in detail.
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extensive use in public and international law.”). Other legal dictionaries contain narrower
definitions. See Black’s Law Dictionary (5th ed. 1979) (“The whole body of judges who
compose a jurisdiction; a judicial court; the jurisdiction which the judges exercise . . . .”);
Ballentine’s Law Dictionary (William S. Anderson ed., 3d ed. 1969) (“A court. The seat or
bench for the judge or judges of a court.”); Black’s Law Dictionary (4th ed. 1951) (same as 1979
edition).
Turning to non-legal sources, at least two widely used English dictionaries define
“tribunal” broadly enough to include private arbitrations. See Webster’s Third New International
Dictionary (1966) (“2: a court or forum of justice: a person or body of persons having authority
to hear and decide disputes so as to bind the disputants . . . .”); Webster’s New International
Dictionary of the English Language (2d ed. 1950) (same). On the other hand, some English
dictionaries contain narrower definitions whose inclusiveness of private proceedings is more
debatable. See Random House Unabridged Dictionary (2d ed. 1993) (“1. a court of justice. 2. a
place or seat of judgment.”); American Heritage Dictionary of the English Language (1976)
(“1. a seat or court of justice.”); see also The Oxford English Dictionary (2d ed. 1989)
(“2.a. A court of justice; a judicial assembly . . . . c. Any of various local boards of officials
empowered to settle disputes, esp. between an individual and a government department, to
adjudicate on fair rents, exemption from military service, etc. . . . .”).6
In sum, several legal and non-legal dictionaries contain definitions of “tribunal” broad
enough to include private arbitration, while others contain narrower definitions that seem to
exclude such proceedings. Because dictionaries leave room for interpretation, we turn to other
indicators of usage to discern the word’s linguistic meaning.
2. Use of the Word “Tribunal” in Legal Writing
A broader definition of “tribunal” finds more support in American courts’ historical and
continuing usage of the word to describe private arbitrations. Cf. New Prime, 139 S. Ct. at 540
& nn.2–3 (reviewing American courts’ prior usage of a phrase to determine the meaning of that
6See also The Random House Dictionary of the English Language (1973), The Oxford English Dictionary
(1971), and The American College Dictionary (1970) (all giving similar definitions).
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phrase in a statute). American jurists and lawyers have long used the word “tribunal” in its
broader sense: a sense that includes private, contracted-for, commercial arbitral panels. For
example, Justice Joseph Story’s Commentaries on Equity Jurisprudence used the word “tribunal”
to describe private, contracted-for arbitrations:
Neither will [courts of equity] . . . compel arbitrators to make an award; nor, when
they have made an award, will they compel them to disclose the grounds of their
judgment. The latter doctrine stands upon the same ground of public policy, as
the others; that is to say, in the first instance, not to compel a resort to these
domestic tribunals, and, on the other hand, not to disturb their decisions, when
made, except upon very cogent reasons.
2 Joseph Story, Commentaries on Equity Jurisprudence § 1457 (6th ed. 1853) (footnotes
omitted).
Furthermore, courts used the word to describe private, contracted-for commercial
arbitrations for many years before Congress added the relevant language to § 1782(a) in 1964.
In Henry v. Lehigh Valley Coal Co., 64 A. 635, 636 (Pa. 1906), for example, the Supreme Court
of Pennsylvania described a panel of three engineers—to be chosen by a method prescribed by
the parties’ contract—as a “special tribunal to settle a special subject of dispute . . . , to wit, how
much minable coal still remains unmined in the land.” Similarly, in Eastern Engineering Co. v.
Ocean City, 167 A. 522, 523 (N.J. 1933), the Supreme Court of New Jersey stated: “The
settlement of controversies by arbitration is an ancient practice at common law. In its broad
sense, it is a substitution, by consent of the parties, of another tribunal for the tribunal provided
by the ordinary processes of law.” In Susong v. Jack, 48 Tenn. 415, 416–17 (1870), the Supreme
Court of Tennessee held that if parties to litigation referred their case to arbitration, the litigation
would be discontinued. In so holding, the court stated that “it is the voluntary act of the parties
in submitting their cause to another tribunal, that operates to discontinue” the pending court case.
Id. The state-court reporters abound with other examples, some within a few years of the 1964
amendment that added the statutory language at issue. See, e.g., Park Constr. Co. v. Indep. Sch.
Dist., 296 N.W. 475, 477 (Minn. 1941); United Ass’n of Journeymen & Apprentices of the
Plumbing & Pipefitting Indus. of the U.S. & Can., Local Union 525, Las Vegas v. Stine, 351 P.2d
965, 974 (Nev. 1960); Astoria Med. Grp. v. Health Ins. Plan, 182 N.E.2d 85, 87 (N.Y. 1962);
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Gilbert v. Burnstine, 237 N.Y.S. 171, 178 (N.Y. Sup. Ct. 1929), rev’d, 174 N.E. 706 (N.Y.
1931); Comm’rs v. Carey, 1 Ohio St. 463, 468 (1853); Green & Coates Sts. Passenger Ry. Co. v.
Moore, 64 Pa. 79, 91 (1870); Giannopulos v. Pappas, 15 P.2d 353, 356 (Utah 1932).
The Supreme Court of the United States, and our court, have used the same terminology.
In Toledo Steamship Co. v. Zenith Transportation Co., 184 F. 391, 400 (6th Cir. 1911), this court
was addressing a private agreement to arbitrate when it stated that the “question [of fault] was
settled against [the appellant] by his own tribunal.” In Bernhardt v. Polygraphic Co. of America,
350 U.S. 198, 203 (1956), the Supreme Court observed: “The nature of the tribunal where suits
are tried is an important part of the parcel of rights behind a cause of action. The change from a
court of law to an arbitration panel may make a radical difference in ultimate result.” Bernhardt
involved a contract under which the parties agreed to resolve disputes by “arbitration under New
York law by the American Arbitration Association;” thus, the case involved a private arbitration.
Id. at 199. As another example, in a 1955 case, Justice Hugo Black referred to the question
“whether a judicial rather than an arbitration tribunal shall hear and determine [an] accounting
controversy.” Baltimore Contractors v. Bodinger, 348 U.S. 176, 185 (1955) (Black, J.,
dissenting), overruled by Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271
(1988). Bodinger involved a contract in which the parties to a joint venture agreed to refer
disputes to one of two named private arbitrators “or an accountant or auditor named by either of
them.” Id. at 177. And in Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 121 n.1 (1924),
the Supreme Court quoted an 1845 district court case that stated:
Courts of equity do not refuse to interfere to compel a party specifically to
perform an agreement to refer to arbitration[] because they wish to discourage
arbitrations . . . . But when they are asked to . . . compel the parties to appoint
arbitrators whose award shall be final, they necessarily pause to consider whether
such tribunals possess adequate means of giving redress . . . .
Id. (quoting Tobey v. Cty. of Bristol, 23 F. Cas. 1313, 1320 (D. Mass. 1845)).7
7See also, e.g., Am. Airlines, Inc. v. Louisville & Jefferson Cty. Air Bd., 269 F.2d 811, 816 (6th Cir. 1959);
Ky. River Mills v. Jackson, 206 F.2d 111, 119 (6th Cir. 1953); Wilko v. Swan, 201 F.2d 439, 444 (2d Cir. 1952),
rev’d, 346 U.S. 427 (1953).
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More recently, the Supreme Court used the phrase “international arbitral tribunal” to
describe a private arbitration. In Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S.
614 (1985), the Court was addressing a proceeding in a private arbitral body, established
pursuant to contract under the rules of the Japan Commercial Arbitration Association, when it
stated: “To be sure, the international arbitral tribunal owes no prior allegiance to the legal norms
of particular states . . . . The tribunal, however, is bound to effectuate the intentions of the
parties.” Id. at 636. Although Mitsubishi post-dates the 1964 amendment to § 1782(a) and is
therefore less instructive than the earlier examples cited, it is nevertheless evidence of the
common usage of the word “tribunal” to describe privately constituted arbitral bodies.
These sources show that American lawyers and judges have long understood, and still
use, the word “tribunal” to encompass privately contracted-for arbitral bodies with the power to
bind the contracting parties.
3. Other Uses of the Word “Tribunal” in the Statute
Many of the foregoing dictionary definitions and the cited instances of longstanding
usage support a linguistic definition of “tribunal” that includes a privately contracted-for arbitral
body. But if the overall context and structure of the statute indicate that Congress used the word
in a different sense than its linguistic meaning, the congressional meaning controls. See Davis,
489 U.S. at 809. Here, other evidence of congressional usage does not compel a narrower
understanding of that word’s meaning than its linguistic meaning.
“[I]dentical words used in different parts of the same statute are generally presumed to
have the same meaning.” IBP, Inc. v. Alvarez, 546 U.S. 21, 34 (2005) (citation omitted); accord
Scalia & Garner, Reading Law 170; see also United States v. Detroit Med. Ctr., 833 F.3d 671,
676 (6th Cir. 2016). Therefore, if other uses of the word “tribunal” appeared in contexts clearly
demanding a more limited reading, we would consider whether the broad ordinary meaning of
that word might not be the meaning in § 1782(a).
However, other uses of the word in the statute do not dictate a more limited reading.
First, a sentence in § 1782(a) provides that “[t]he [discovery] order may prescribe the practice
and procedure, which may be in whole or part the practice and procedure of the foreign country
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or the international tribunal, for taking the testimony or statement or producing the document or
other thing.” Although the phrase “practice and procedure of the foreign country or the
international tribunal” may appear to support FedEx Corp.’s position (which we will address
below) that § 1782(a) applies only to governmental entities, that phrase is consistent with the
statute’s application to private arbitrations of the sort at issue here. The sentence’s permissive
wording—“may be in whole or part”—indicates that this is an optional borrowing provision: if
the foreign country or international tribunal for use in which the district court is ordering
discovery has procedures governing the taking of evidence that the district court finds would be
helpful, then the district court may order that evidence be collected pursuant to those procedures.
The most that could be said of the sentence is that it may be read to assume that a foreign country
or international tribunal will have evidence-gathering procedures governing any given
proceeding. But the statute’s terms do not require that such procedures exist or that a “foreign
tribunal” be a governmental entity of a country that has prescribed such procedures.
Title 28, Chapter 117 (which is entitled “Evidence; Depositions” and includes § 1782(a))
contains only one other instance of “tribunal,” and that instance is not inconsistent with a
definition of the word that includes private arbitrations.8 Specifically, section 1781 addresses the
transmittal of “a letter rogatory issued, or request made, by a foreign or international tribunal” to
a “tribunal, officer, or agency in the United States.” A private arbitral panel can make a request
for evidence, so this section does not indicate that the word “tribunal” in the statute refers only to
judicial or other public entities. Therefore, we see no reason to doubt our conclusion that the
meaning of “tribunal” in § 1782(a) includes private arbitrations.
“[O]ur analysis begins with the language of the statute. And where the statutory
language provides a clear answer, it ends there as well.” Hughes Aircraft Co. v. Jacobson,
525 U.S. 432, 438 (1999) (citations and internal quotation marks omitted). Here, the text,
context, and structure of § 1782(a) provide no reason to doubt that the word “tribunal” includes
private commercial arbitral panels established pursuant to contract and having the authority to
8As quoted in section II(B) above, subsection (b) of § 1782 also contains the phrase “foreign or
international tribunal.” However, it appears in the same context as subsection (a)’s use of the phrase, and we do not
believe it holds any clues to that phrase’s meaning in subsection (a).
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issue decisions that bind the parties. Therefore, we need look no further to hold that the DIFC-
LCIA Arbitration panel is a “foreign or international tribunal” and reverse the district court’s
judgment.
4. The Supreme Court’s Decision in Intel
Our holding finds support also in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S.
241 (2004). Although the Supreme Court has not addressed the particular question facing us
here, its decision in Intel did address the scope of § 1782(a)’s use of “tribunal” in a different
factual context. Both parties cite Intel in support of their respective positions on the statutory
interpretation issue, so we will address whether the decision casts doubt on our textual
conclusion. It does not. In fact, Intel determined that § 1782(a) provides for discovery
assistance in non-judicial proceedings.
a. The Facts and Reasoning of Intel
Intel concerned an international antitrust enforcement complaint brought by Advanced
Micro Devices, Inc. (“AMD”) against Intel Corporation (“Intel”) with the Directorate-General
for Competition (“DG-Competition”) of the Commission of the European Communities (the
“Commission”). Intel, 542 U.S. at 246. The DG-Competition was the “primary antitrust law
enforcer” of the European Union. Id. at 250. And the Commission was an “executive and
administrative” body, id., with the authority to “enforce the [Treaty Establishing European
Community] with written, binding decisions, enforceable through fines and penalties,” id. at 252
(citation omitted).
Antitrust proceedings in this system proceeded as follows. The DG-Competition would
receive a complaint, which it would investigate. Id. at 254. If the DG-Competition decided to
pursue the complaint, it would notify the investigation’s target, which would then be subject to a
hearing. Id. at 254–55. After the hearing, the officer who conducted the hearing would give the
DG-Competition a report; the DG-Competition would provide a recommendation to the
Commission on whether to dismiss the complaint or hold the target liable. Id. at 255. “The
Commission’s final action dismissing the complaint or holding the target liable [was] subject to
review in the Court of First Instance and the European Court of Justice.” Id.
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In Intel, AMD filed a § 1782(a) application in federal district court to obtain evidence
from Intel for use in the antitrust enforcement proceeding. Id. at 246. Relevant here, the
Supreme Court had to ascertain whether the Commission was a “foreign or international
tribunal” within the meaning of § 1782(a). See id. at 257. The Supreme Court concluded that it
“ha[d] no warrant to exclude the . . . Commission, to the extent that it acts as a first-instance
decisionmaker, from § 1782(a)’s ambit.” Id. at 258.
In reaching that conclusion, the Court noted that the pre-1964 version of the statute had
empowered district courts to order discovery “in any judicial proceeding pending in any court in
a foreign country.” Id. at 248 (emphasis omitted); see id. at 258. In 1964, Congress replaced
that phrase with “in a proceeding in a foreign or international tribunal.” Id. at 248–49, 258.
According to the Intel Court, “Congress understood that change to ‘provid[e] the possibility of
U.S. judicial assistance in connection with [administrative and quasi-judicial proceedings
abroad].’” Id. (alterations in original) (quoting S. Rep. No. 88–1580, at 7–8 (1964), as reprinted
in 1964 U.S.C.C.A.N. 3782, 3788 (“Senate Report”)). Thus, on the Supreme Court’s reasoning,
the word “tribunal” applies to non-judicial proceedings.
In further support of its conclusion that the Commission was a “tribunal,” the Supreme
Court quoted a law review article by a professor who had participated in drafting the 1964
amendments:
“[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”; in addition to affording
assistance in cases before the European Court of Justice, § 1782, as revised in
1964, “permits the rendition of proper aid in proceedings before the [European]
Commission in which the Commission exercises quasi-judicial powers.”
Id. (second and third alterations in original) (emphasis added) (quoting Hans Smit, International
Litigation Under the United States Code, 65 Colum. L. Rev. 1015, 1026–27 & nn.71, 73 (1965)).
Finally, the Supreme Court quoted an amicus brief from the Commission that explained how the
Commission’s “investigative function blur[red] into decisionmaking” when it decided what
action to take pursuant to the DG-Competition’s report. Id. (citation omitted).
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As the foregoing shows, the Supreme Court seems to have primarily focused on the
decision-making power of the Commission—and Congress’s substitution in 1964 of the broad
phrase “foreign or international tribunal” for the specific phrase “judicial proceeding in a foreign
country”—in reaching its conclusion that the Commission was a “tribunal.” In explaining its
reasoning, the Intel Court said nothing that would make us doubt the outcome of our textual
analysis in this case.9 FedEx Corp. disagrees, however, so next we will address its reading of
Intel.
b. Whether Intel Limits § 1782(a) to “State-Sponsored” Arbitrations
Not disputing that some arbitrations fall within the statute’s use of “tribunal,” FedEx
Corp. argues that only a certain type of arbitration qualifies: namely, “state-sponsored”
arbitration. Appellee Br. at 24. By “state-sponsored,” FedEx Corp. appears to refer to arbitral
authorities permanently maintained by a national or international government to deal with certain
categories of disputes, as opposed to arbitral authorities constituted pursuant to a contract
between private parties to deal with particular commercial disputes as they arise.
FedEx Corp. does not provide any examples of “state-sponsored” arbitral bodies that
would fit its reading of the statute. Instead, FedEx Corp. cites a line from the section of Intel
describing four discretionary factors district courts should consider in deciding whether to grant
a § 1782(a) request. The second factor in the analysis is “the nature of the foreign tribunal, the
character of the proceedings underway abroad, and the receptivity of the foreign government or
the court or agency abroad to U.S. federal-court judicial assistance.” Intel, 542 U.S. at 264.
Because a private arbitration panel “is not a ‘foreign government’ nor a ‘court’ nor an ‘agency,’”
9ALJ emphasizes the Intel Court’s quotation from the Smit law review article, with its inclusion of “arbitral
tribunals,” as evidence that private arbitrations are included in the meaning of “tribunal.” FedEx Corp. responds that
(1) this portion of the Smit quotation was dicta and should be accorded minimal weight and (2) “arbitral tribunals”
does not necessarily refer to private arbitral panels. Even granting that FedEx Corp.’s arguments have some merit,
the Supreme Court’s approving quotation of the Smit article certainly provides no affirmative support for FedEx
Corp.’s reading of the statute. Furthermore, our conclusion about the guidance to be derived from Intel would be the
same absent the Smit article’s mention of “arbitral tribunals.” The characteristics of the Commission mentioned by
the Intel Court in reaching its conclusion support our conclusion here that the arbitration at issue is a “tribunal,” see
Intel, 542 U.S. at 258: the DIFC-LCIA panel is a “first-instance decisionmaker” with the power to bind the parties—
an exercise of “quasi-judicial powers,” see id. at 257 (citation omitted).
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FedEx Corp. argues, it “is not within the class of tribunals contemplated in Intel.” Appellee Br.
at 25.
When viewed in context, however, this sentence from Intel does not do the work FedEx
Corp. asks of it. First, and most saliently, this portion of the Intel opinion simply describes one
factor for district courts to consider when deciding whether to grant a § 1782(a) request after
making the threshold determination of whether a given proceeding is in a “tribunal.” Nothing in
the quoted sentence indicates that the Intel Court was attempting to define “tribunal” in this
portion of the opinion.
Second, the quoted sentence does not foreclose the possibility that a district court might
consider the privately constituted “nature” of a “tribunal” to counsel against granting discovery
in a given case—for instance, if an arbitral panel has limited resources to consider outside
evidence (a factual determination that the district court would be in a better position than an
appellate court to make). Indeed, that the Court made “the nature of the foreign tribunal” a
factor for the district court to consider suggests that the Court was not attempting to contemplate
any and all possible types of “tribunal” in which § 1782(a) discovery might be granted. As the
Court noted, “[i]n light of the variety of foreign proceedings resistant to ready classification in
domestic terms, Congress left unbounded by categorical rules the determination whether a matter
is proceeding ‘in a foreign or international tribunal.’” Intel, 542 U.S. at 263 n.15.
In conclusion, Intel contains no limiting principle suggesting that the ordinary meaning of
“tribunal” does not apply here. FedEx Corp., however, argues that such a principle may be
found in the legislative history of § 1782(a) and in policy considerations, and it directs our
attention to two of our sister circuits’ decisions that relied on those sources. To those decisions
we now turn.
5. The Second Circuit and Fifth Circuit Decisions
Both parties have spent extensive resources briefing and arguing non-textual arguments,
and we recognize that our decision today is at odds with two other circuits’ decisions on this
issue. See Republic of Kazakhstan v. Biedermann Int’l, 168 F.3d 880, 883 (5th Cir. 1999)
(“Biedermann”); National Broadcasting Co., Inc. v. Bear Stearns & Co., Inc., 165 F.3d 184 (2d
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Cir. 1999) (“NBC”). Therefore, we will explain why the counterarguments do not dissuade us
from our conclusion.
FedEx Corp. relies on NBC and Biedermann to support its argument that only “state-
sponsored” proceedings fall within § 1782(a)’s scope. In those decisions, the Second and Fifth
Circuits, respectively, determined that the word “tribunal” in § 1782(a) does not clearly exclude
private arbitrations but that the scope of the word is ambiguous. See Biedermann, 168 F.3d at
881; NBC, 165 F.3d at 188. After considering the legislative history of § 1782(a) as well as
policy considerations, the Second and Fifth Circuits concluded that “tribunal” includes only
“governmental or intergovernmental arbitral tribunals and conventional courts and other state-
sponsored adjudicatory bodies.” NBC, 165 F.3d at 190; see Biedermann, 168 F.3d at 882.
Although the word “tribunal” has a broad definition and a narrow definition in
dictionaries, we do not agree that legislative history is required to resolve the scope of the word
in § 1782(a). First, we believe the Second and Fifth Circuits turned to legislative history too
early in the interpretation process. The NBC court turned to legislative history after determining
that the definition of “tribunal” is broad enough to include private arbitrations. See NBC, 165
F.3d at 188; see also Biedermann, 168 F.3d at 881 (agreeing with the Second Circuit that the
phrase “‘foreign or international tribunal’ is ambiguous” and relying on the history and apparent
purpose of the statute to determine the meaning of that phrase). By contrast, we agree that
dictionary definitions alone do not necessarily produce the conclusion that “tribunal” extends to
the proceeding at issue here; however, courts’ longstanding usage of the word shows not only
that one permissible meaning of “tribunal” includes private arbitrations but also that that
meaning is the best reading of the word in this context. Thus, it is not necessary or appropriate
to consult extra-textual sources of information. See Lamie, 540 U.S. at 539.
Second, some scholars and judges have questioned the reliability of legislative history as
an indicator of statutory meaning. See generally Scalia & Garner, Reading Law 369–90. For
example, some scholars and judges have noted that comments on a statute’s meaning in
congressional reports do not undergo the rigorous process of political horse-trading,
bicameralism, and presentment; thus, these commentators have argued, those comments are not
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an appropriate guide to the meaning of text that did go through that process. See, e.g., John F.
Manning, Textualism as a Nondelegation Doctrine, 97 Colum. L. Rev. 673, 728 (1997).
A related concern is that, even assuming a court may properly consider the subjective intentions
of those who voted on a bill, reliance on particular legislators’ comments in congressional
reports runs into a potential empirical pitfall: those comments may fail accurately to reflect the
subjective intentions of a majority of lawmakers. See, e.g., Frank H. Easterbrook, The Role of
Original Intent in Statutory Construction, 11 Harv. J.L. & Pub. Pol’y 59, 59 (1988); see also
Scalia & Garner, Reading Law 376.
Assuming that legislative history is a helpful aid in some cases, however, we do not find
that it contradicts our conclusion here. In NBC, the Second Circuit relied largely on two facts
from the legislative history of § 1782(a) to reach its conclusion that the provision applies only to
government-run proceedings.10 First, the court pointed out that although House and Senate
reports accompanying the 1964 amendments spoke of a desire to expand discovery assistance
beyond judicial proceedings, there was no mention of “private dispute resolution proceedings
such as arbitration” in those reports. NBC, 165 F.3d at 189. Instead, the reports made statements
such as, “[t]he word ‘tribunal’ is used to make it clear that assistance is not confined to
proceedings before conventional courts.” Id. (alteration in original) (quoting Senate Report at
3788; H.R. Rep. No. 88–1052, at 9 (1963) (“House Report”)). In addition, the NBC court relied
on the reports’ statement that “[f]or example, it is intended that the court have discretion to grant
assistance when proceedings are pending before investigating magistrates in foreign countries.”
Id. (alteration in original) (quoting Senate Report at 3788; House Report at 9).
The NBC court also discussed a second aspect of § 1782(a)’s lineage: a discovery-
enabling statute that preceded and was replaced by § 1782(a). This statute, codified before its
repeal at 22 U.S.C. §§ 270–270g, provided for discovery assistance in proceedings “before an
international tribunal or commission, established pursuant to an agreement between the United
States and any foreign government or governments.” NBC, 165 F.3d at 192 (quoting repealed
10The Fifth Circuit’s opinion in Biedermann also discussed § 1782(a)’s legislative history. We will not
separately discuss that opinion’s treatment of the legislative history because the arguments substantially duplicate
those in NBC.
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22 U.S.C. § 270). Observing that this statute used the phrase “international tribunal,” the NBC
court stated that “[t]here is no question that the statute applied only to intergovernmental
tribunals” and that the purpose of the 1964 amendments was “to broaden the scope of the
repealed 22 U.S.C. §§ 270–270g by extending the reach of the surviving statute to
intergovernmental tribunals not involving the United States,” not to extend discovery assistance
to private arbitrations. Id. at 189, 190. NBC stated, and FedEx Corp. echoes, that “[t]he
legislative history’s silence with respect to private tribunals is especially telling because . . . a
significant congressional expansion of American judicial assistance to international arbitral
panels created exclusively by private parties would not have been lightly undertaken by
Congress without at least a mention of this legislative intention.” Id. at 190 (footnote omitted).
We are unpersuaded. Even if we were inclined to permit statements in congressional
reports to color our view of a statutory term, we would hesitate to rely upon such statements as
did NBC. Those statements do not exclude privately constituted proceedings from the meaning
of “tribunal.” If anything, what the statements make clear is Congress’s intent to expand
§ 1782(a)’s applicability. Although FedEx Corp. argues that “there is nothing in the legislative
history suggesting the expansion extended to private arbitration,” Appellee Br. at 18, this
argument fails to appreciate that the legislative history does not indicate that the expansion
stopped short of private arbitration. The facts on which the legislative history is most clear are
that the substitution of “tribunal” for “judicial proceeding” broadened the scope of the statute,
and the repeal of §§ 270–270g removed the requirement that the United States be a party to an
international agreement under which a proceeding takes place. Further inferences from the
legislative history must rely on speculation.
For the above reasons, we discern no tension between § 1782(a)’s legislative history and
our textual conclusion regarding the scope of the word “tribunal.”
6. Policy Considerations
Finally, FedEx Corp. draws our attention to some national policies that it says would be
hampered by a reading of “tribunal” that includes private arbitrations. Although FedEx Corp.
may be correct in its assessment of some of the interests at stake in extending discovery
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assistance to private arbitral bodies, “[a]chieving a better policy outcome . . . is a task for
Congress, not the courts.” See Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530
U.S. 1, 13–14 (2000) (citations omitted). For us, “[i]t suffices that the natural reading of the text
produces the result we announce.” Id. at 13. But even if we were inclined to countenance policy
arguments, we would not agree that they crown FedEx Corp.’s reading of § 1782(a) the correct
one.
a. Breadth of § 1782(a) Discovery Compared to Federal Arbitration Act
Discovery
FedEx Corp. argues that § 1782(a) provides broader discovery than is available to parties
in domestic arbitration under the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq. It would
be incongruous, according to FedEx Corp., to permit foreign parties in arbitration overseas
broader discovery than United States parties in arbitration here. In support, FedEx Corp. cites
Biedermann, where the Fifth Circuit determined that differences between the FAA and § 1782(a)
suggested that § 1782(a) should not apply to private arbitration. See Biedermann, 168 F.3d at
882–83. For example, the Biedermann court noted that § 1782(a) permits “any interested party”
to seek a discovery order from a district court; by contrast, the FAA states only that arbitration
panels themselves may order production of witnesses or documents and seek enforcement of
those orders in federal district court. See Biedermann, 168 F.3d at 883; see also NBC, 165 F.3d
at 187 (citing 9 U.S.C. § 7).
These concerns fail to persuade us. As ALJ points out, Intel—which was decided after
NBC and Biedermann—rejected similar proportionality arguments about the breadth of
discovery assistance provided by § 1782(a). See Intel, 542 U.S. at 260–63. The petitioner, Intel,
asked the Supreme Court to rule that district courts must not order discovery under § 1782(a)
unless the applicant demonstrates that the same discovery would be available under the rules of
the foreign jurisdiction. See id. at 260–61. After determining that the text and history of
§ 1782(a) failed to support a “foreign-discoverability” requirement, the Supreme Court addressed
Intel’s argument that imposing such a requirement would serve the policy of “maintaining parity
between litigants”:
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While comity and parity concerns may be important as touchstones for a district
court’s exercise of discretion in particular cases, they do not permit our insertion
of a generally applicable foreign-discoverability rule into the text of § 1782(a).
....
. . . When information is sought by an “interested person,” a district court
could condition relief upon that person’s reciprocal exchange of information.
Moreover, the foreign tribunal can place conditions on its acceptance of the
information to maintain whatever measure of parity it concludes is appropriate.
We also reject Intel’s suggestion that a § 1782(a) applicant must show
that United States law would allow discovery in domestic litigation analogous to
the foreign proceeding. Section 1782 is a provision for assistance to tribunals
abroad. It does not direct United States courts to engage in comparative analysis
to determine whether analogous proceedings exist here.
Id. at 261–63 (emphasis added) (internal citations omitted).
The Intel Court also addressed a similar contention from Justice Breyer’s dissent, which
argued for limiting § 1782(a) to situations in which the party seeking discovery could obtain
similar discovery either under foreign law or under domestic law “in analogous circumstances.”
Id. at 270 (Breyer, J., dissenting). The majority responded, “While we reject the rules the dissent
would inject into the statute, we do suggest guides for the exercise of district-court discretion [in
deciding whether to grant a particular discovery application].” Id. at 263 n.15 (internal citations
omitted). Later, in detailing the four discretionary factors, the Court stated:
[T]he grounds Intel urged for categorical limitations on § 1782(a)’s scope may be
relevant in determining whether a discovery order should be granted in a
particular case. Specifically, a district court could consider whether the § 1782(a)
request conceals an attempt to circumvent foreign proof-gathering restrictions or
other policies of a foreign country or the United States.
Id. at 264–65 (emphasis added) (internal citations omitted). Applying Intel’s reasoning, we
decline to conclude that simply because similar discovery devices may not be available in
domestic private arbitration, § 1782(a) categorically does not apply to foreign or international
private arbitration.
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b. Efficiency Considerations
Next, FedEx Corp. contends that we should not read § 1782(a) as authorizing discovery
in private commercial arbitrations because doing so would defeat a principal purpose of
arbitrating disputes: namely, saving the parties expenditures of money and time associated with
civil litigation. See Biedermann, 168 F.3d at 883; see also NBC, 165 F.3d at 190–91.
This argument is not persuasive. As Intel explained, a district court can limit or reject
“unduly intrusive or burdensome” discovery requests. Intel, 542 U.S. at 265. FedEx Corp.’s
argument seems to assume that § 1782(a) discovery requests will inevitably become unduly
burdensome, but the Supreme Court has made clear that district courts enjoy substantial
discretion to shape discovery under § 1782(a). See id. at 261, 262, 265; see also Heraeus Kulzer,
GmbH v. Biomet, Inc., 633 F.3d 591, 597–98 (7th Cir. 2011). As the Court has stated, a district
court evaluating a § 1782(a) request may consider (among other factors) “the nature of the
foreign tribunal” and “the character of the proceedings” for which discovery is sought. Intel, 542
U.S. at 264. The district court may well conclude, in some cases, that discovery of a scope
appropriate for civil litigation would be “unduly intrusive or burdensome” in the context of an
arbitration. And the district court may withhold or shape discovery assistance accordingly.
c. The “Twin Aims” of § 1782
Finally, FedEx Corp. argues that providing § 1782(a) discovery assistance to participants
in arbitration would not serve the “twin aims” of § 1782: “providing efficient assistance to
participants in international litigation and encouraging foreign countries by example to provide
similar assistance to our courts.” Appellee Br. at 20 (quoting JSC MCC Eurochem v. Chauhan,
No. 18-5890, 2018 U.S. App. LEXIS 26226, at *5 (6th Cir. Sept. 14, 2018) (order)). Assuming
for the sake of argument that these purposes indeed provided Congress’s primary motivation to
pass, and later amend, § 1782(a), we would not conclude that arbitration is outside the reach of
the statute simply because providing discovery assistance for use in arbitration might serve those
purposes less directly than providing assistance for use in litigation. But FedEx Corp. suggests
that permitting § 1782(a) discovery in arbitrations actually disserves United States interests
because it “encourage[s] foreign countries to undermine U.S. policy in favor of enforcing private
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arbitration agreements by granting discovery inconsistent with those agreements.” Appellant Br.
at 20.
If FedEx Corp.’s point is that parties who agree to arbitrate disputes generally want to
avoid extensive discovery, we would again note that § 1782(a) is permissive: the district court
“may” order discovery, and the Supreme Court has made clear that the district court has wide
discretion in determining whether and how to do so. See Intel, 542 U.S. at 261, 262, 265, 266.
This discretion presumably extends to consideration of any agreements between the contracting
parties regarding the availability and scope of discovery in arbitration. Cf. id. at 266 n.19 (“The
District Court might also consider the significance of the protective order entered by the District
Court for the Northern District of Alabama [in related domestic litigation between AMD and
Intel].”).
To sum up, none of the policy arguments urged by FedEx Corp. affect our conclusion
that the word “tribunal” in § 1782(a) encompasses private, contracted-for commercial
arbitrations of the type at issue here.11 We hold that the DIFC-LCIA Arbitration panel is a
“foreign or international tribunal,” and the district court may order § 1782(a) discovery for use in
the proceeding before that panel.
11FedEx Corp. also argues that even if we find private arbitrations are not categorically excluded from
§ 1782(a), we should apply a four-element “functional” analysis derived from Intel and employed by several district
courts, including the court in this case. The only element of that functional test that is disputed here would require a
non-judicial adjudicator’s decisions to be subject to judicial review if it is to be considered a “tribunal.” FedEx
Corp. contends that the DIFC-LCIA Arbitration panel’s decisions are not subject to judicial review, and therefore
that panel is not a “tribunal.” But we are not convinced that Intel spawned a functional test or that, if it did, that test
includes judicial reviewability. The opinion does not purport to establish a test for future cases; more specifically,
Intel does not say that a non-judicial “tribunal” must be subject to judicial review. Although the Ninth Circuit had
characterized the proceeding before the Commission as, “at minimum, one leading to quasi-judicial proceedings,”
Intel, 542 U.S. at 252 (quoting Advanced Micro Devices, Inc. v. Intel Corp., 292 F.3d 664, 667 (9th Cir. 2002), aff’d,
542 U.S. 241 (2004)), the Supreme Court’s own analysis focused more on the Commission’s power “as a first-
instance decisionmaker,” id. at 258.
Even assuming that judicial reviewability is required, the DIFC-LCIA Arbitration easily passes that test.
Chapter 7 of the DIFC Arbitration Law sets out several grounds on which a party may challenge an award; in
addition, the Arbitration Law provides that the DIFC Court may set aside an award if it involves a subject matter not
capable of resolution by arbitration under the Arbitration Law, if it is “expressly referred” to a different entity for
resolution, or if it conflicts “with the public policy of the UAE.” R. 41-1, PageID 1079–80. Indeed, the grounds for
setting aside an arbitral award under the FAA are similar to the grounds for doing so under the DIFC Arbitration
Law. See 9 U.S.C. § 10. And review of awards under the FAA is considered “judicial review.” See Hall Street
Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 585 (2008).
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C. Whether ALJ is Entitled to § 1782(a) Assistance Under Intel
Next, ALJ asks us to rule that it is entitled to the discovery requested in its application.
In Intel, the Supreme Court discussed four factors for district courts to consider in deciding
whether to grant a § 1782(a) request:
First, when the person from whom discovery is sought is a participant in
the foreign proceeding . . . , the need for § 1782(a) aid generally is not as apparent
as it ordinarily is when evidence is sought from a nonparticipant in the matter
arising abroad. . . . .
Second, . . . a court . . . may take into account the nature of the foreign
tribunal, the character of the proceedings underway abroad, and the receptivity of
the foreign government or the court or agency abroad to U.S. federal-court
judicial assistance . . . . [Third], a district court could consider whether the
§ 1782(a) request conceals an attempt to circumvent foreign proof-gathering
restrictions or other policies of a foreign country or the United States. [Fourth],
unduly intrusive or burdensome requests may be rejected or trimmed.
542 U.S. at 264–65 (internal citations omitted). The district court in this case did not address the
Intel factors because doing so was unnecessary after the court concluded that § 1782(a) did not
apply to the arbitrations at issue.
We decline to analyze the Intel factors in the first instance. “It is the general rule that a
federal appellate court does not consider an issue not passed upon below.” Jackson v. City of
Cleveland, 925 F.3d 793, 812 (6th Cir. 2019) (citation omitted). Although we sometimes make
an exception if “the issue is presented with sufficient clarity and completeness and its resolution
will materially advance the progress of . . . already protracted litigation,” id. at 812–13 (citation
omitted), the general rule carries particular force here. As the Supreme Court has made clear,
whether to grant § 1782(a) discovery is a discretionary decision: “a district court is not required
to grant a § 1782 discovery application simply because it has the authority to do so.” Intel,
542 U.S. at 264 (citation omitted). The Intel factors, which guide that discretionary decision,
require careful consideration of the facts and circumstances of the case.
Some of the relevant facts and circumstances are not fully presented in the appellate
record here and, even if they were, require judgment calls that a trial court is better positioned
than an appellate court to make. For instance, the fourth Intel factor involves consideration of
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whether a discovery request is “unduly intrusive or burdensome;” if a request is overly broad, the
district court may decide either to deny the request or to narrow it. See id. at 262 (noting how a
district court may tailor discovery to serve the goal of “maintaining parity among adversaries”).
In sum, the question of what outcome is appropriate under the Intel factors is not “presented with
sufficient clarity and completeness” for us to consider it in the first instance. Jackson, 925 F.3d
at 812–13 (citation omitted); see also Mees v. Buiter, 793 F.3d 291, 301 (2d Cir. 2015)
(declining to “decide the [§ 1782(a)] application” in the first instance).
III. CONCLUSION
For the foregoing reasons, we REVERSE the district court’s order and REMAND for
the district court to consider whether ALJ’s application should be granted under the Intel factors.