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Circuit Split Deepened By Second Circuit's 'Functional' Test Application In Recent Section 1782 Ruling, Peter B. Rutledge, Emina Sadic Herzberger

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Federal law authorizes district courts to order discovery for use in a proceeding before a "foreign or international tribunal." While that law, 28 U.S.C. § 1782, permits interested persons to request such discovery, neither the statutory language nor Supreme Court jurisprudence definitively resolves whether private arbitral tribunals fall within its scope. Unsurprisingly, the lack of clear guidance on this matter has triggered a circuit split, with the Second and Fifth Circuits generally declining to extend § 1782 to private arbitral tribunals while the Fourth and Sixth Circuits broadly interpret the statutory language to apply § 1782 to private arbitral tribunals. …