The case of the day is In re Broadsheet LLC (D. Colo. 2011). Broadsheet had a contract with the National Accountability Bureau of the government of Pakistan. The contract gave Broadsheet, an Isle of Man company, the exclusive right to “recover assets misappropriated by Pakistani government officials”, presumably with some sort of revenue sharing between Pakistan and Broadsheet. Broadsheet alleged that Pakistan had entered into sham settlement agreements that deprived Broadsheet of its right to recover fees under the contract. According to its brief, Broadsheet had “taken steps to commence an arbitration” against Pakistan in Dublin under the Rules of the Chartered Institute of Arbitrators, and that it also “[was] invoking consultation with the Government in connection with a contemplated arbitral claim under the UK-Pakistan bilateral investment treaty.”
The court granted Broadsheet’s application for issuance of subpoenas, with a standard and correct recitation of the statutory prerequisites for judicial assistance and the Intel discretionary factors (the court simply assumed that an arbitral tribunal qualifies as a “tribunal” for purposes of § 1782, which is clearly right with regard to BIT tribunals, and possibly right with regard to private arbitral tribunals).
The point of interest is that the second of the two arbitrations for which Broadsheet sought evidence was not (yet) pending. Its brief goes out of its way to say that the arbitration in Dublin had been commenced, according to the CIA rules. Because the evidence was apparently relevant to both arbitrations, the fact that one of the arbitrations was pending makes the pendency of the second arbitration immaterial to the court’s decision. Still, it is worth pointing out that either if neither arbitration had been commenced, there is still an argument that judicial assistance would be proper, since under Intel the foreign proceeding need only be in “reasonable contemplation.”
I wonder, though, whether, in a private arbitration, a party should be able to invoke § 1782 before the arbitration has been commenced, at least where there is no need to perpetuate testimony as under Fed. R. Civ. P. 27. The cases I know of that involve foreign proceedings not yet pending have to do with criminal or administrative investigations. In re Letter of Request from Crown Prosecution Service, 870 F.2d 686 (D.C. Cir. 1989); In re Request for Assistance from Ministry of Legal Affairs, 848 F.2d 1151 (11th Cir. 1988); Lazaridis v. NCMEC, 760 F.Supp.2d 109 (D.D.C. 2011); In re Wilhelm, 470 F.Supp.2d 409 (S.D.N.Y. 2007).