Today the Supreme Court granted the petition for a writ of certiorari in the Servotronics case. This is the case that will (we hope!) address the most significant outstanding circuit split in Section 1782 practice today: does the statute allow the federal courts to order discovery in the United States in aid of a private international arbitration seated abroad? I’ve written about the case a few times before, both substantively and procedurally. On the procedural front, it will be interesting to see whether the Court can get to the case in sufficient time for a decision before the issue becomes moot—there were some interesting hijinks in the petition stage indicating the petitioner is worried about this. On the substantive front, the questions are interesting and, I think, not easy. Given the limitations on the parties’ ability to take discovery without leave of the arbitrators in domestic cases, isn’t it incongruous to let them do it in international cases? On the other hand, doesn’t a private international arbitral tribunal have the same functions as a foreign court in the relevant senses, and doesn’t it therefore pass muster as a “tribunal” under Intel? We’ll be keeping a close eye on this one.
MCLE has just published its 2021 supplement to Federal Civil Litigation in the