Back in March 2020, the Fourth Circuit issued a decision in the Servotronics case, holding that courts had the power, under § 1782, to order discovery in aid of a private international arbitration outside the United States. Its decision was at odds with the Seventh Circuit’s decision later that year, adding to the circuit split that resulted in the Supreme Court’s decision to grant cert. to resolve the split. But while Servotronics pushes ahead in its attempt to get evidence for use in the case, it faces enormous time pressure: the arbitrators recently refused to continue the hearing, now scheduled for May 10, in order to allow time for the § 1782 proceedings to reach a conclusion.
Following the Fourth Circuit’s decision, the case was remanded, and after further proceedings, the district judge decided not to issue the subpoenas Servotronics sought until the Supreme Court had decided the issue. In March 2021, Servotronics filed a petition for a writ of mandamus in the Fourth Circuit, seeking an order directing the lower court to proceed, given that the Fourth Circuit’s mandate had been favorable to Servotronics. Last week, the Fourth Circuit granted the petition and directed the US District Court for the District of South Carolina to issue the subpoenas “without delay.” Without getting into a big discussion of the effect of a mandate on appeal, this seems correct to me. A district court has to obey the mandate of the appellate court unless it is stayed. The court issued the subpoenas, and the depositions are now set for early May, just in time for the May 10 hearing.
Now, in a new wrinkle, Rolls Royce has applied to the Supreme Court for a stay in the Fourth Circuit mandamus case and also sought an immediate administrative stay. The Chief Justice has ordered a response to be filed by April 27.
Before this latest development, there was a risk that the case would become moot because the Supreme Court would not be able to issue a decision in time for the evidence to be used at the May 10 hearing. Now, there is a new risk that the case will become moot because Servotronics will get the evidence it seeks before the Supreme Court rules. Interesting times! My one hope is that the Court does not end up deciding the big and interesting legal question on its much-discussed “shadow docket” in the form of an order on the motion for a stay—the bar deserves better than that.