Coming To America: The Use of 28 U.S.C. §1782

Since 1855, the federal courts of the United States have been empowered to assist in the gathering of evidence for use before foreign tribunals. Today, the source of that authority is 28 U.S.C. §1782 which permits the courts to order a person “to give [ ] testimony. . . or to produce a document . . . for use in a proceeding in a foreign or international tribunal… .” It was generally assumed, until the United States Supreme Court’s decision of Intel Corp. v. Advanced Micro Devices, Inc. in 2004, that arbitration tribunals were not “foreign tribunals” for purposes of 28 U.S.C. §1782. While the issue in Intel did not involve an arbitration tribunal, a statement by the Supreme Court in dicta has called into question the exact parameters of the words “foreign tribunal,” resulting in a split of opinion among the federal courts of the United States.