By: Patrick Brogan, ALR Senior Editor, 2021

On March 22, 2021, the U.S. Supreme Court granted certiorari in the case of Servotronics Inc. v. Rolls Royce PLC et al.[1] The plaintiff, Servotronics Inc., an aerospace parts manufacturer headquartered in Western New York, is seeking testimony and documents as discovery from the Boeing Company relating to an arbitration case involving Servotronics and British manufacturer: Rolls-Royce. The arbitration is being held in London and the question at hand is whether a federal court may order discovery of a person or company located in the United States at the request of a party to private international commercial arbitration.

In 2016, a Rolls-Royce engine, mounted in a Boeing 787 Dreamliner, caught fire during a test flight. Rolls-Royce claimed the fire was caused by a malfunctioning engine valve supplied by Servotronics. Rolls-Royce settled its claim with Boeing and later brought an arbitration case against Servotronics in London. During arbitration, Servotronics filed ex parte petitions in two federal district courts requesting issuance of subpoenas ordering testimony from individual Boeing employees and for Boeing to turn over certain documents. Servotronic’s cited 28 U.S.C. § 1782 (“Section 1782”) as its legal basis in its petition to the courts.

Section 1782 grants federal courts the discretion to order entities in their districts to turn over evidence to be used in certain foreign proceedings. The relevant text of the statute reads: “The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal” (emphasis added). [2]

In response to its petitions, Servotronics received two conflicting messages from the Circuit Courts. The Fourth Circuit held that Section 1782 may be used in private foreign or international arbitration.[3] Particularly, the Fourth Circuit pointed to the arbitral body in the case of Servotronics, the Chartered Institute of Arbitrators (CIArb), stating that CIArb was “acting within the authority of the state.”[4] On the other hand, the Seventh Circuit affirmed the lower district court’s denial of Servotronic’s petition.[5] In doing so, the Seventh Circuit held that the phrase “foreign or international tribunal” in Section 1782 does not refer to private commercial arbitration panels, but rather state-sponsored tribunals only.[6]

The Fourth and Seventh circuit courts are not the only appeals courts to weigh in on this issue. The Second[7] and Fifth[8] Circuits have taken positions similar to the Seventh Circuit, holding that reference to foreign or international tribunals in Section 1728 means state-sponsored tribunals. The Sixth Circuit[9], on the other hand, holds similar to the Fourth Circuit in that a private international arbitration panel is a tribunal under Section 1728.

The split among circuits warrants clarity from the Supreme Court. The case will be determined by the Court’s interpretation of the statute’s text, particularly the phrase “foreign or international tribunal.” Further, the Court must consider the role of the American court system in private arbitration, particularly private international arbitration. Finally, the Court’s decision should weigh the potential disparity in granting subpoena power to parties to arbitration conducted abroad, but not here in the United States.

[1] Servotronics, Inc., v. Rolls-Royce PLC, et al. No. 19-1847 (2021).

[2] 28 U.S.C. § 1782(a)

[3] Servotronics, Inc. v. Boeing Co., 954 F.3d 209, 216 (4th Cir. 2020).

[4] Id.

[5] Servotronics, Inc. v. Rolls-Royce, 975 F.3d 689 (7th Cir. 2020).

[6] Id.

[7] NBC v. Bear Stearns, Inc., 165 F.3d 184 (2d Cir. 1999).

[8] Republic of Kazakhstan v. Biedermann International, 168 F.3d 880 (5th Cir. 1999).

[9] In re Application to Obtain Discovery for Use in Foreign Proceedings, 939 F.3d 710, 723 (6th Cir. 2019).