Servotronics, Inc. v. Rolls-Royce PLC

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1847
SERVOTRONICS, INC.,
Petitioner-Appellant,
v.
ROLLS-ROYCE PLC and
THE BOEING COMPANY,
Intervenors-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 18-cv-7187 — Elaine E. Bucklo, Judge.
____________________
ARGUED SEPTEMBER 19, 2019 — DECIDED SEPTEMBER 22, 2020
____________________
Before SYKES, Chief Judge, and HAMILTON and BRENNAN,
Circuit Judges.
SYKES, Chief Judge. Section 1782(a) of Title 28 authorizes
the district court to order a person within the district to give
testimony or produce documents “for use in a proceeding in
a foreign or international tribunal.” This case asks whether a
private foreign arbitration is “a proceeding in a foreign or
international tribunal” within the meaning of the statute.
2 No. 19-1847
Two decades ago, the Second and Fifth Circuits answered
this question “no,” holding that § 1782(a) authorizes the
district court to provide discovery assistance only to state-
sponsored foreign tribunals, not private foreign arbitrations.
Nat’l Broad. Co. v. Bear Stearns & Co., 165 F.3d 184, 191 (2d
Cir. 1999); Republic of Kazakhstan v. Biedermann Int’l, 168 F.3d
880, 883 (5th Cir. 1999).
More recently, the Sixth Circuit reached the opposite
conclusion, Abdul Latif Jameel Transp. Co. v. FedEx Corp. (In re
Application to Obtain Discovery for Use in Foreign Proceedings),
939 F.3d 710, 714 (6th Cir. 2019), and the Fourth Circuit
agreed, Servotronics, Inc. v. Boeing Co., 954 F.3d 209, 214 (4th
Cir. 2020). We join the Second and Fifth Circuits and hold
that § 1782(a) does not authorize the district court to compel
discovery for use in a private foreign arbitration.
I. Background
The backdrop for this case is an indemnification dispute
over losses incurred when an aircraft engine caught fire
during testing in South Carolina. Rolls-Royce PLC manufac-
tured and sold a Trent 1000 engine to the Boeing Company
for incorporation into a 787 Dreamliner aircraft. In January
2016 Boeing tested the new aircraft at its facility near the
Charleston International Airport. A piece of metal became
lodged in an engine valve, restricting the flow of fuel to the
engine. As Boeing employees attempted to fix the problem,
the engine caught fire, damaging the aircraft. Boeing de-
manded compensation from Rolls-Royce, and in 2017 the
companies settled for $12 million. Rolls-Royce then sought
indemnification from Servotronics, Inc., the manufacturer of
the valve.
No. 19-1847 3
Under a long-term agreement between Rolls-Royce and
Servotronics, any dispute not resolved through negotiation
or mediation must be submitted to binding arbitration in
Birmingham, England, under the rules of the Chartered
Institute of Arbiters (“CIArb”). Negotiations did not bear
fruit, so Rolls-Royce initiated arbitration with the CIArb. For
convenience, the parties agreed to conduct the arbitration in
London.
Servotronics thereafter filed an ex parte application in the
U.S. District Court for the Northern District of Illinois asking
the court to issue a subpoena compelling Boeing to produce
documents for use in the London arbitration. The applica-
tion invoked 28 U.S.C. § 1782(a), and the judge initially
granted it and issued the requested subpoena. Rolls-Royce
intervened and moved to quash the subpoena, arguing that
§ 1782(a) does not permit a district court to order discovery
for use in a private foreign commercial arbitration. Boeing
intervened and joined the motion to quash. The judge re-
versed course and quashed the subpoena. She agreed with
Rolls-Royce and Boeing that § 1782(a) does not authorize the
court to provide discovery assistance in private foreign
arbitrations. Servotronics appealed. Rolls-Royce and Boeing
jointly defend the judge’s ruling.
II. Discussion
A. Statutory Framework
Sections 1781 and 1782 of Title 28 govern the district
court’s authority to provide discovery assistance in litigation
in foreign and international tribunals. Section 1781 describes
a formal judicial instrument known as a “letter rogatory”—a
letter of request “issued by one court to a foreign court,
4 No. 19-1847
requesting that the foreign court (1) take evidence from a
specific person within the foreign jurisdiction … and
(2) return [it] … for use in a pending case.” Letter of Request,
BLACK’S LAW DICTIONARY (11th ed. 2019).
Letters rogatory are transmitted through diplomatic
agencies; the statute provides that the State Department may,
either “directly, or through suitable channels, … receive a
letter rogatory issued, or request made, by a foreign or
international tribunal, to transmit it to the tribunal, officer, or
agency in the United States to whom it is addressed,” and
“receive and return it after execution.” 28 U.S.C. § 1781(a)(1).
The assistance is reciprocal; tribunals in the United States
may issue letters rogatory through the State Department to a
“foreign or international tribunal, officer, or agency.”1 Id.
§ 1781(a)(2).
Section 1782 works in tandem with and supplements
§ 1781, empowering the district court to order a person
within the district to give testimony or provide evidence for
1 A State Department regulation elaborates:
In its broader sense in international practice, the term
letters rogatory denotes a formal request from a court in
which an action is pending, to a foreign court to perform
some judicial act. Examples are requests for the taking of
evidence, the serving of a summons, subpoena, or other
legal notice, or the execution of a civil judgment. In
United States usage, letters rogatory have been common-
ly utilized only for the purpose of obtaining evidence.
Requests rest entirely upon the comity of courts toward
each other, and customarily embody a promise of reci-
procity.
22 C.F.R. § 92.54.
No. 19-1847 5
use in foreign litigation, either in response to a letter rogato-
ry or on application of a person with an interest in the
litigation. The key portion of the statute reads as follows:
The district court of the district in which a per-
son 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 ac-
cusation.
Id. § 1782(a) (emphasis added). The link to § 1781 comes in
the next sentence:
The order may be made pursuant to a letter
rogatory issued, or request made, by a foreign
or international tribunal or upon the applica-
tion 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.
Id.
The statute also gives the judge the discretion to pre-
scribe procedures for the collection of evidence, including
the option to require adherence to the practice and proce-
dure of the foreign country or international tribunal in
question:
The order may prescribe the practice and pro-
cedure, which may be in whole or part the practice
and procedure of the foreign country or the interna-
tional tribunal, for taking the testimony or
statement or producing the document or other
6 No. 19-1847
thing. To the extent that the order does not pre-
scribe otherwise, the testimony or statement
shall be taken, and the document or other thing
produced, in accordance with the Federal
Rules of Civil Procedure.
Id. (emphasis added).
This case involves a § 1782(a) application filed by a party
to a private commercial arbitration in the United Kingdom;
there is no letter rogatory or request from a foreign or inter-
national tribunal. Rather, Servotronics invoked the statute by
virtue of its status as an “interested person” in the London
arbitration. The judge issued the subpoena ex parte but later
quashed it after concluding that § 1782(a) does not authorize
federal courts to provide discovery assistance to private
foreign arbitrations. Servotronics takes issue with that
interpretation of the statute, so we’re asked to resolve a
purely legal question and our review is de novo. United
States v. Titan Int’l, Inc., 811 F.3d 950, 952 (7th Cir. 2016).
B. Applicability to Private Foreign Arbitrations
This is a question of first impression for our circuit, but
several other circuits have addressed it and a split has
recently emerged. The disagreement centers on the meaning
of the statutory phrase “foreign or international tribunal”—
or more particularly, the word “tribunal.”
The Second Circuit was the first to confront the question
more than 20 years ago. The court began by observing that
although the phrase “foreign or international tribunal” does
not unambiguously exclude private arbitral panels, neither
does it unambiguously include them. Nat’l Broad. Co.,
165 F.3d at 188. After reviewing the statutory and legislative
No. 19-1847 7
history, the court concluded that the phrase, considered in
context, is limited to state-sponsored foreign and interna-
tional tribunals. Id. at 188–91. The court added that a contra-
ry interpretation would create an inexplicable conflict with
the Federal Arbitration Act. More specifically, a broad grant
of federal-court authority to compel discovery in private
foreign arbitrations “would stand in stark contrast to” the
extremely limited judicial role in domestic arbitrations. Id. at
191. Accordingly, the court held that the statute does not
authorize district courts to order discovery for use in private
foreign arbitrations. Id.
The Fifth Circuit quickly agreed with that interpretation,
Biedermann Int’l, 168 F.3d at 883, and that’s where things
stood for many years. No other appellate court weighed in
until last year when the Sixth Circuit read the word “tribu-
nal” broadly and held that the district court’s authority to
compel discovery for use in foreign litigation extends to
private foreign arbitrations. In re Application to Obtain Discov-
ery, 939 F.3d at 714.
A few months later, the Fourth Circuit aligned itself with
the Sixth Circuit in a case involving a § 1782(a) application
by Servotronics in a district court in South Carolina seeking
discovery for use in this same London arbitration. Servo-
tronics, 954 F.3d at 212–13. The Fourth Circuit’s decision
differs in one respect from the Sixth Circuit’s; it rests in part
on the court’s view that contractual arbitration is the “prod-
uct of government-conferred authority” both in the United
Kingdom and the United States. 2 Id. at 214.
2 That view strikes us as mistaken. Contractual arbitration is private
dispute resolution. The source of a private arbitral panel’s adjudicative
8 No. 19-1847
Finally, and more recently still, the Second Circuit reaf-
firmed its interpretation of § 1782 notwithstanding the
contrary views of the Sixth and Fourth Circuits. In re Guo,
965 F.3d 96, 104 (2d Cir. 2020). The court also held that
nothing in the Supreme Court’s decision in Intel Corp. v.
Advanced Micro Devices, Inc., 542 U.S. 241 (2004), required a
course correction. In re Guo, 965 F.3d at 105–06. We’ll return
to Intel in a moment; for now, it’s enough to say that the
Court’s decision does not tip the scales in favor of either side
of the circuit split.
For several reasons, we side with the Second and Fifth
Circuits in this interpretive debate. First, the word “tribunal”
is not defined in the statute, and dictionary definitions do
not unambiguously resolve whether private arbitral panels
are included in the specific sense in which the term is used
here. All definitions agree that the word “tribunal” means “a
court,” but some are more expansive, leaving room for both
competing interpretations.
For example, in 1964 when the present-day version of the
statute was adopted, Black’s Law Dictionary defined “tribu-
nal” as: “The seat of a judge; the place where he administers
justice. The whole body of judges who compose a jurisdic-
tion; a judicial court; the jurisdiction which the judges
exercise.” Tribunal, BLACK’S LAW DICTIONARY (4th ed. 1951).
That definition appears to exclude private arbitral panels.
Today the legal definition of “tribunal” is broader: “A court
authority is found in the parties’ contract, not a governmental grant of
power. A private arbitral body does not exercise governmental or quasi-
governmental authority. But we need not explore this point further. No
one here argues that arbitration in the United Kingdom (or the United
States) is the product of government-conferred authority.
No. 19-1847 9
of justice or other adjudicatory body.” Tribunal, BLACK’S LAW
DICTIONARY (11th ed. 2019).
Nonlegal definitions are similar. See, e.g., Tribunal, THE
CONCISE OXFORD DICTIONARY OF CURRENT ENGLISH (5th ed.
1964) (defining “tribunal” as “[j]udgement-seat … ; court of
justice”); Tribunal, WEBSTER’S NEW TWENTIETH CENTURY
DICTIONARY (2d ed. 1964) (defining “tribunal” as “the seat of
a judge; … a court of justice”); Tribunal, AMERICAN HERITAGE
DICTIONARY OF THE ENGLISH LANGUAGE (5th ed 2018) (defin-
ing “tribunal” as “[a] law court[;] … [a] committee or board
appointed to adjudicate in a particular matter”); Tribunal,
MERRIAM-WEBSTER’S DICTIONARY AND THESAURUS (2020)
(defining “tribunal” as “the seat of a judge[;] a court of
justice[;] something that decides or determines, [as in] the ~
of public opinion …”).
In short, canvassing dictionary definitions is inconclu-
sive. In both common and legal parlance, the phrase “foreign
or international tribunal” can be understood to mean only
state-sponsored tribunals, but it also can be understood to
include private arbitration panels. Both interpretations are
plausible.
C. Statutory Context
As always, context is key to unlocking meaning. After all,
statutory words and phrases “cannot be construed in a
vacuum. … It is a fundamental canon of statutory construc-
tion that the words of a statute must be read in their context
and with a view to their place in the overall statutory
scheme.” Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743,
1748 (2019) (quoting Davis v. Mich. Dep’t of Treasury, 489 U.S.
803, 809 (1989)). Once we situate the word “tribunal” in its
10 No. 19-1847
proper statutory context, the more expansive reading of the
term—the one that includes private arbitrations—becomes
far less plausible.
As we’ve noted, the language of present-day § 1782 dates
to 1964. See Intel, 542 U.S. at 247–49 (describing the statutory
history of § 1782). The text was proposed by the Commission
on International Rules of Judicial Procedure, a study group
created by Congress in 1958 with the following statutory
charge:
The Commission shall investigate and study
existing practices of judicial assistance and co-
operation between the United States and for-
eign countries with a view to achieving
improvements. To the end that procedures
necessary or incidental to the conduct and set-
tlement of litigation in State and Federal courts
and quasi-judicial agencies which involve the
performance of acts in foreign territory, such as
the service of judicial documents, the obtaining
of evidence, and the proof of foreign law, may
be more readily ascertainable, efficient, eco-
nomical, and expeditious, and that the proce-
dures of our State and Federal tribunals for the
rendering of assistance to foreign courts and
quasi-judicial agencies be similarly improved,
the Commission shall—
(a) draft for the assistance of the Secre-
tary of State international agreements to be
negotiated by him;
No. 19-1847 11
(b) draft and recommend to the Presi-
dent any necessary legislation;
(c) recommend to the President such
other action as may appear advisable to
improve and codify international practice
in civil, criminal, and administrative pro-
ceedings; and
(d) perform such other related duties as
the President may assign.
Act of Sept. 2, 1958, Pub. L. No. 85-906, § 2, 72 Stat. 1743,
1743. Noticeably absent from this statutory charge is any
instruction to study and recommend improvements in
judicial assistance to private foreign arbitration.
“Six years later, in 1964, Congress unanimously adopted
legislation recommended by the Rules Commission,” which
“included a complete revision of § 1782.” Intel, 542 U.S. at
248; Act of Oct. 3, 1964, Pub. L. No. 88-619, § 9, 78 Stat. 995,
997. The legislation also revised 28 U.S.C. § 1696, pertaining
to service of process in foreign litigation, and § 1781, regard-
ing letters rogatory. Act of Oct. 3, § 4, 78 Stat. 995; id. § 8, 78
Stat. 996. All three statutes use the identical phrase “foreign
or international tribunal” to describe the object of the district
court’s litigation assistance.
Identical words or phrases used in different parts of the
same statute (or related statutes) are presumed to have the
same meaning. Merrill Lynch, Pierce, Fenner & Smith Inc. v.
Dabit, 547 U.S. 71, 86 (2006). Service-of-process assistance
and letters rogatory—governed by §§ 1696 and 1781—are
matters of comity between governments, which suggests
that the phrase “foreign or international tribunal” as used in
12 No. 19-1847
this statutory scheme means state-sponsored tribunals and
does not include private arbitration panels.
Within § 1782(a) itself, the word “tribunal” appears three
times—first in the operative sentence authorizing the district
court to order discovery “for use in a proceeding in a foreign
or international tribunal,” and again in the next sentence,
which authorizes the court to act on a letter rogatory issued
by “a foreign or international tribunal.” Two sentences later
the word “tribunal” appears again where the statute pro-
vides that the court’s discovery 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.” (Emphasis added.)
The highlighted phrase parallels the earlier phrase “for-
eign or international tribunal.” Harmonizing this statutory
language and reading it as a coherent whole suggests that a
more limited reading of § 1782(a) is probably the correct one:
a “foreign tribunal” in this context means a governmental,
administrative, or quasi-governmental tribunal operating
pursuant to the foreign country’s “practice and procedure.”
Private foreign arbitrations, in other words, are not included.
D. Conflict with the Federal Arbitration Act
This narrower understanding of the word “tribunal”
avoids a serious conflict with the Federal Arbitration Act
(“FAA”), 9 U.S.C. §§ 1–15 (amended 1988). We “interpret
Congress’s statutes as a harmonious whole rather than at
war with one another.” Epic Sys. Corp. v. Lewis, 138 S. Ct.
1612, 1619 (2018). When a statute is susceptible of two inter-
pretations, one that creates a conflict with another statute
and another that avoids it, we have an obligation to avoid
No. 19-1847 13
the conflict “if such a construction is possible and reasona-
ble.” Precision Indus., Inc. v. Qualitech Steel SBQ, LLC, 327 F.3d
537, 544 (7th Cir. 2003). Applying this principle to the rela-
tionship between the FAA and § 1782 confirms that the latter
does not apply to private foreign arbitrations.
The discovery assistance authorized by § 1782(a) is nota-
bly broader than that authorized by the FAA. Most signifi-
cantly, the FAA permits the arbitration panel—but not the
parties—to summon witnesses before the panel to testify and
produce documents and to petition the district court to
enforce the summons. 9 U.S.C. § 7. Section 1782(a), in con-
trast, permits both foreign tribunals and litigants (as well as
other “interested persons”) to obtain discovery orders from
district courts. If § 1782(a) were construed to permit federal
courts to provide discovery assistance in private foreign
arbitrations, then litigants in foreign arbitrations would have
access to much more expansive discovery than litigants in
domestic arbitrations. It’s hard to conjure a rationale for
giving parties to private foreign arbitrations such broad
access to federal-court discovery assistance in the United
States while precluding such discovery assistance for liti-
gants in domestic arbitrations.
Moreover, the FAA applies to some foreign arbitrations
under implementing legislation for the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards
and the Inter-American Convention on International Com-
mercial Arbitration. See 9 U.S.C. §§ 201–208, 301–307; Nat’l
Broad. Co., 165 F.3d at 187. Reading § 1782(a) broadly to
apply to all private foreign arbitrations creates a direct
conflict with the Act for this subset of foreign arbitrations.
14 No. 19-1847
In sum, what the text and context of § 1782(a) strongly
suggest is confirmed by the principle of avoiding a collision
with another statute: a “foreign or international tribunal”
within the meaning of § 1782(a) is a state-sponsored, public,
or quasi-governmental tribunal.
E. Intel and Legislative History
Intel was the Supreme Court’s first—and to date only—
occasion to address § 1782(a). The Court held that the statute
may be invoked by a nonlitigant “interested person,” Intel,
542 U.S. at 256–57, and also that a foreign proceeding need
not be pending or imminent but only “within reasonable
contemplation,” id. at 259. And the Court clarified that
§ 1782(a) does not contain an implicit foreign-discoverability
requirement. Id. at 260–63. Finally, and most pertinent here,
the Court considered whether the proceeding at issue in the
case—before the Directorate General for Competition of the
Commission of the European Communities—was a “pro-
ceeding in a foreign or international tribunal.” The Court
had no difficulty concluding that the Directorate, as a public
agency with quasi-judicial authority, qualified as a “foreign
tribunal” within the meaning of § 1782(a).
Along the way to this last holding, the Court sketched
the legislative history of § 1782 and as a part of its discussion
quoted from a footnote in a law-review article written by the
law professor who served as the reporter for the commission
that proposed what eventually became § 1782. This passage
in Intel has taken on outsized significance here, so we quote
it in full: “The term ‘tribunal’ [in § 1782(a)] … includes
investigating magistrates, administrative and arbitral tribu-
nals, and quasi-judicial agencies, as well as conventional
civil, commercial, criminal, and administrative courts.” Id. at
No. 19-1847 15
258 (emphasis added) (quoting Hans Smit, International
Litigation Under the United States Code, 65 COLUM. L. REV.
1015, 1026 n.71 (1965)).
Servotronics relies heavily on the professor’s inclusion of
“arbitral tribunals” in this footnoted list, but this reliance is
misplaced. The quotation from the professor’s article ap-
pears in the Court’s opinion as part of an explanatory paren-
thetical. There is no indication that the phrase “arbitral
tribunals” includes private arbitral tribunals. Even if there
were such an indication, we see no reason to believe that the
Court, by quoting a law-review article in a passing parenthe-
tical, was signaling its view that § 1782(a) authorizes district
courts to provide discovery assistance in private foreign
arbitrations.
In short, this passage cannot bear the weight Servotronics
places on it. For the foregoing reasons, we join the Second
and Fifth Circuits in concluding that § 1782(a) does not
authorize the district courts to compel discovery for use in
private foreign arbitrations.
AFFIRMED