DONNA M. RYU, Magistrate Judge.
Before the court are three motions: (1) a motion by Grupo Unidos por el Canal ("GUPC") to compel URS Corporation and URS Holdings ("URS") to provide documents to GUPC pursuant to a subpoena authorized by this court, Docket No. 11; (2) a motion to intervene pursuant to Federal Rule of Civil Procedure 24 filed by Autoridad del Canal de Panama ("ACP"), Docket No. 13; and (3) ACP's motion to quash the subpoena, Docket No. 13-1.
For the reasons set forth below, ACP's motion to intervene is
GUPC is a Panama-based company, jointly owned and operated by four global construction firms. Menes Decl. [Docket No. 2] Ex. 1 at 6-7. In August 2009, GUPC's member companies entered into a contract (the "Contract") with ACP—a legal entity of the Republic of Panama—to build a new set of locks on the Panama Canal (the "Canal Project"). GUPC Section 1782 Appl. [Docket No. 1] ¶ 3; Contract [Docket No. 13-4]. GUPC was formed for the purpose of performing this work, which is ongoing.
The Contract contains an arbitration clause that provides that any dispute arising from the Canal Project shall be subject to a private arbitration venued in Miami and conducted under the Rules of Arbitration of the International Chamber of Commerce ("ICC"). Contract § 20.6(a), (e). "In addition to the [ICC] Rules, the arbitration shall be conducted according to the International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration ["IBA Rules"]." Contract § 20.6(b). The Contract specifies that arbitrations "shall be decided in law (within the meaning of Panamanian law)" and the "arbitration agreement and the arbitration shall be governed by the United States Federal Arbitration Act ["FAA"], 9 U.S.C. §§ 1 et seq." Contract § 20.6(d), (f).
On December 28, 2013, GUPC and several co-claimants commenced an arbitration against ACP (the "Arbitration") pursuant to the arbitration clause of the Contract. On July 24, 2014, the parties to the Arbitration executed the "Terms of Reference," an agreement regarding the procedures and rules of the Arbitration. Hoffman Decl. Ex. G [Docket No. 13-7].
The Terms of Reference state that the Arbitration "shall be governed by: (i) the United States Federal Arbitration Act, 9 U.S.C. §§ 1 et seq.; (ii) the ICC Rules in force as of 1st January 2012; (iii) these Terms of Reference; and (iv) the IBA Rules on the Taking of Evidence in International Commercial Arbitration . . . ." Id. at ¶ 65.
The parties also agreed to "grant the Arbitrators the power to issue procedural orders on specific procedural issues when needed," and specified that "[t]he procedural timetable will be determined by way of procedural order after consultation with the Parties." Id. at ¶¶ 67, 74.
In a procedural order dated August 11, 2014 ("Procedural Order"), the Arbitral Tribunal determined the sequence and timing of the Arbitration proceedings. Hoffman Decl. Ex. H [Docket No. 13-8]. Discovery begins on May 29, 2015 with the parties' requests for production of documents. Id. at 2. On June 16, 2015, the parties may file "[r]equests to the Arbitral Tribunal for production of documents if any" pursuant to paragraphs 3.4 and 3.6 of the Procedural Order." Id. Additional relevant terms from the Procedural Order will be discussed in greater detail below.
On September 30, 2014, GUPC filed an ex parte application under 28 U.S.C. § 1782, requesting that this court issue an order compelling URS to produce certain documents. GUPC Section 1782 Appl. ¶¶ 7-10. GUPC sought to obtain certain documents from URS Corporation and URS Holdings, two United States companies headquartered in San Francisco that had worked as environmental and engineering consultants to ACP in connection with the canal expansion, and that had performed an Environmental Impact Assessment, a Community Engagement Plan, and an Environmental Management Plan for the Canal Project. GUPC Section 1782 Mem. [Docket 1-1] at 2-3.
In its Section 1782 application, GUPC never noted the Miami venue of the Arbitration, instead describing it in conclusory terms as an "international arbitration." See GUPC Section 1782 Appl. ¶ 5 ("GUPC . . . submitted a dispute with ACP regarding the Project to international arbitration under the Rules of Arbitration of the ICC, by filing a Request for Arbitration with the Secretariat of the ICC International Court of Arbitration in Paris, France"); GUPC Section 1782 Mem. at 1 ("The arbitration, submitted to the International Court of Arbitration in Paris, France, is governed by the Rules of Arbitration of the ICC."), 4 (noting that the request for arbitration was submitted to the ICC secretariat in Paris, and that the arbitration will be determined under Panamanian law by three arbitrators from Spain, England, and Belgium, but not noting the Miami venue of arbitration), and 6-8 (arguing that "ICC arbitration" constitutes a "proceeding in a foreign or international tribunal").
GUPC's Section 1782 application was likewise evasive about the private nature of the Arbitration.
On October 27, 2014, the court granted the ex parte application and permitted GUPC to deliver a subpoena on URS. Order [Docket No. 10] at 3-5. The court specifically noted that ex parte applications under Section 1782 are "typically justified by the fact that the parties will be given adequate notice of any discovery taken pursuant to the request and will then have the opportunity to move to quash the discovery." Id. at 5 (quoting In re Republic of Equador, No. C-10-80255-CRB (EMC), 2010 WL 3702427, at *5 (N.D. Cal. Sept. 15, 2010)).
On November 10, 2014, GUPC served URS with a copy of this subpoena. Vasquez Decl. [Docket 11-2] Ex. A at 2-3. URS initially cooperated with GUPC by identifying and supplying responsive documents and inviting GUPC's counsel to review potentially responsive documents at URS's Oakland office. Mot. to Compel [Docket No. 11] at 2. However, on December 15, 2014, ACP sent a letter to URS saying that it had "recently been made aware of" GUPC's subpoena, and requesting that URS "refuse to permit further review" of "documents issued pursuant to that order. URS immediately informed GUPC that it could not proceed with the discovery. URS Opp'n. [Docket No. 12] at 1. At the time, GUPC's attorney was already en route to Oakland to review URS's documents. Mot. to Compel 2-3.
ACP has separate contracts with URS that are not the subject of the Arbitration (the "URS Contract"). Hoffman Decl. Ex. F. ACP contends that it has unlimited rights in and exclusive ownership of all data produced by URS as a result of the URS Contract. Id. § 14.2 (The ACP shall have unlimited rights in all data produced by the Contract exclusively as a result of its performance of this Contract."); id. § 15 ("All materials prepared by [URS] specifically and exclusively for ACP pursuant to this agreement shall be owned exclusively by ACP."). Furthermore, ACP contends that it has a contractual right to certain confidential documents related to the Canal Project within URS's possession, and that URS may not release or distribute these documents without URS's prior explicit consent. URS Contract § 12.
On December 17, 2014, GUPC filed the motion to compel, requesting that the court order URS to comply with its subpoena and to pay the travel costs incurred when GUPC's attorney made an unproductive trip to Oakland. URS takes no position on the validity of GUPC's Section 1782 subpoena, characterizing this question as part of a "discovery dispute" between GUPC and ACP, but does oppose GUPC's request for payment of its attorney's travel costs.
On January 5, 2015, ACP filed a motion to intervene in GUPC's ex parte application for an order under 28 U.S.C. § 1782. If granted permission to intervene, ACP seeks to quash GUPC's Section 1782 subpoena on the grounds that GUPC has not actually met the statutory requirements governing the issuance of such subpoenas, and that discretionary considerations counsel against permitting the discovery requested.
Under Federal Rule of Civil Procedure 24(a), a court must grant an applicant's request for intervention in an action if: (1) the applicant's motion is timely; (2) the applicant "claims an interest relating to the property or transaction which is the subject of the underlying action"; (3) the applicant "is so situated that the disposing of the action may as a practical matter impair or impede [its] ability to protect that interest"; and (4) the applicant's interest is not adequately represented by the existing parties to the action. See Fed. R. Civ. P. 24(a); Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173, 1177 (9th Cir. 2011) (citing Sierra Club v. EPA, 995 F.2d 1478, 1481 (9th Cir.1993)). The applicant's interest in the action must be "significantly protectable," meaning it is "is protected under some law, and . . . there is a `relationship' between [the applicant's] legally protected interest and the plaintiff's claims." United States v. City of Los Angeles, 288 F.3d 391, 398 (9th Cir. 2002) (citation omitted). A party seeking to intervene as of right has the burden of showing that these four elements are met, but Rule 24's requirements are broadly interpreted in favor of intervention. See Citizens for Balanced Use v. Montana Wilderness Ass'n, 647 F.3d 893, 897 (9th Cir. 2011) (citation omitted). This is because "[a] liberal policy in favor of intervention serves both efficient resolution of issues and broadened access to the courts. By allowing parties with a practical interest in the outcome of a particular case to intervene, we often prevent or simplify future litigation involving related issues; at the same time, we allow an additional interested party to express its views before the court." City of Los Angeles, 288 F.3d at 398.
Federal Rule of Civil Procedure 24(b) governs permissive intervention. Under this rule, a district may permit any party to intervene if it has: (1) established an independent grounds for jurisdiction; (2) filed a timely motion; and (3) demonstrated that its claim or defense and the main action have a question of law or fact in common. See Fed. R. Civ. P. 24(b); City of Los Angeles, 288 F.3d at 403. "A motion for permissive intervention pursuant to Rule 24(b) is directed to the sound discretion of the district court." San Jose Mercury News, Inc. v. U.S. Dist. Court—N. Dist. (San Jose), 187 F.3d 1096, 1100 (9th Cir. 1999) (citations omitted). "[I]n exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights." Fed. R. Civ. P. 24(b)(3).
For the purpose of reviewing a motion to intervene, a court must accept a proposed-intervener's "well-pleaded, non-conclusory allegations" and evidence as true. See Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 819-20 (9th Cir. 2001).
ACP asserts that it is entitled to intervene in this proceeding as a matter of right pursuant to Rule 24(a). Alternatively, ACP argues that the court should exercise its discretion to permit ACP to intervene pursuant to Rule 24(b).
The court first turns to the question of permissive intervention. GUPC does not dispute that ACP meets the jurisdictional requirement. Indeed, the court exercises federal question jurisdiction over GUPC's application for discovery pursuant to 28 U.S.C. § 1782, which is the sole issue in this proceeding. See Freedom from Religion Found., Inc. v. Geithner, 644 F.3d 836, 843 (9th Cir. 2011) (jurisdictional requirement stems from "concern that intervention might be used to enlarge inappropriately the jurisdiction of the district courts," which "does not apply . . . in federal-question cases when the proposed intervenor is not raising new claims"). However, GUPC argues that ACP's motion to intervene is untimely; that ACP's claims do not share a common question of law or fact as GUPC's application; and that permitting intervention would cause prejudice to GUPC. The court considers each argument in turn.
In determining whether a motion to intervene is timely, a court considers: "(1) the stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3) the reason for and length of the delay. United States v. Carpenter, 298 F.3d 1122, 1125 (9th Cir. 2002) (citing County of Orange v. Air Calif., 799 F.2d 535, 537 (9th Cir. 1986)). "Timeliness is a flexible concept, [and] its determination is left to the district court's discretion." United States v. Alisal Water Corp., 370 F.3d 915, 921 (9th Cir. 2004) (citation omitted). "[T]he mere lapse of time . . . is not necessarily a bar to intervention." Alisal, 370 F.3d at 921 (citation omitted). "Under . . . longstanding [Ninth Circuit] precedent, a party seeking to intervene must act as soon as he knows or has reason to know that his interests might be adversely affected by the outcome of the litigation." Peruta v. Cnty. of San Diego, 771 F.3d 570, 572 (9th Cir. 2014) (quotation and formatting omitted).
GUPC alleges that "ACP's action comes at a late stage in this discovery action." GUPC Opp'n. [Docket No. 22] at 6. The court granted GUPC's ex parte application on October 27, 2014, and GUPC served the subpoena on URS on November 10, 2014. GUPC did not notify ACP that it was seeking documents from URS for use in the Arbitration.
GUPC also contends that ACP's intervention will "disrupt GUPC's evidence gathering to its prejudice." GUPC Opp'n. at 6. This contention is implausible given that discovery in the Arbitration is not even scheduled to begin until May 29, 2015.
Under the circumstances, the court finds that ACP's motion to intervene is timely.
GUPC argues that this court should deny permissive intervention because "ACP has failed to allege a legitimate interest in [the] proceeding." GUPC Opp'n 8-9. GUPC then refers the court to its numerous arguments regarding whether ACP has a "significantly protectable interest" in the proceeding as required for mandatory intervention under Rule 24(a).
This argument conflates the standards governing permissive intervention with those applicable to intervention as of right. In order to qualify for permissive intervention, a potential intervenor need only show that it has a "claim or defense that shares with the main action a common question of law or fact." Fed. R. Civ. P. 24(b)(1)(B); Los Angeles, 288 F.3d at 403. ACP's motions to intervene and to quash indisputably share many common questions of law and fact with GUPC's underlying Section 1782 application, i.e., whether GUPC's request for discovery meets the statutory requirements of 28 U.S.C. § 1782, and, if so, whether the discretionary factors identified in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004) counsel in favor of granting GUPC's application. Consequently, ACP has satisfied this requirement.
As a final matter, the court must consider whether ACP's motion to intervene will prejudice the adjudication of GUPC's rights, or cause undue delay. Fed. R. Civ. P. 24(b)(3). Permissive intervention may be denied if the addition of the proposed intervenor would inject new issues into a dispute, make the same arguments as an existing party, or unnecessarily prolong a proceeding. See UMG Recordings, Inc. v. Bertelsmann AG, 222 F.R.D. 408, 414 (N.D. Cal. 2004) (denying permissive intervention because addition of new party would "necessitate the consideration of extraneous legal and factual issues," unrelated to the original party's claim); Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 955 (9th Cir. 2009) (affirming denial of permissive intervention where proposed intervenor's interests were adequately represented by existing parties and permitting intervention would cause undue delay).
No such concerns are present here. ACP's intervention will not inject a new issue into the dispute. The central issues are the same: whether GUPC's discovery request meets the statutory requirements of Section 1782 and whether the discretionary Intel factors weigh in favor of granting the request. In addition, ACP's interests are not adequately represented by any current party to this discovery action—URS takes no position on the validity of GUPC's subpoena, and has stated that this issue is a dispute between that GUPC and ACP. URS Opp'n at 1.
The only prejudice identified by GUPC is that "ACP's Motion already has added undue delay to URS's complying with the subpoena" by requiring motion practice. GUPC Opp'n at 8. Additional motion practice regarding the appropriateness of GUPC's discovery request is alone insufficient to show undue delay. See Su v. Siemens Indus., Inc., No. 12-CV-03743-JST, 2013 WL 3477202, at *3 (N.D. Cal. July 10, 2013) (finding that prospective of additional motion practice, by itself, is not enough to establish prejudice).
In sum, because (1) ACP's motion to intervene was timely filed; (2) ACP's motion to quash shares common questions of law and fact with GUPC's Section 1782 application; and (3) GUPC has not credibly identified any prejudice or undue delay it will suffer as a result of ACP's intervention, ACP's motion to intervene pursuant to Rule 24(b) is
GUPC's application was brought pursuant to 28 U.S.C. § 1782, which states as follows:
28 U.S.C. § 1782(a). The purpose of Section 1782 is "to provide federal-court assistance in the gathering of evidence for use in a foreign tribunal." Intel, 542 U.S. at 247. Section 1782 has the "twin aims" of "providing efficient means of assistance to participants in international litigation in our federal courts and encouraging foreign countries by example to provide similar means of assistance to our courts." Id. at 253.
A district court is authorized to grant a Section 1782 application where (1) the person from whom the discovery is sought resides or is found in the district of the district court to which the application is made, (2) the discovery is for use in a proceeding before a "foreign or international tribunal," and (3) the application is made by the foreign or international tribunal or "any interested person." 28 U.S.C. § 1782(a); see also Intel, 542 U.S. at 246.
However, simply because a court has the authority under Section 1782 to grant an application does not mean that it is required to do so. Id. at 264. The Supreme Court has identified several discretionary factors that a court should take into consideration in ruling on a Section 1782 request:
Id. at 264-65.
ACP does not contest the first and third statutory requirements of Section 1782, i.e., whether URS can be found in the Northern District of California and GUPC is an "interested person." However, ACP contends that because it is a private arbitration, the Arbitration does not qualify as a "tribunal." ACP further asserts that the Arbitration's Miami venue disqualifies it from being considered "foreign or international."
The Ninth Circuit has not addressed whether a private contractual arbitration is a foreign or international tribunal under Section 1782.
Subsequent to these two decisions, the Supreme Court decided Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), the seminal case exploring the parameters of Section 1782. In Intel, Advanced Micro Devices sought assistance from a federal court pursuant to Section 1782 for discovery related to a proceeding it initiated against Intel before the Directorate-General for Competition (DG-Competition) of the Commission of the European Communities ("European Commission"), an entity that enforces European competition laws and regulations. Id. at 254. "The Intel Court was not faced with—and did not address—the question of whether a private arbitral tribunal is a foreign or international tribunal under Section 1782." Operadora, 2009 WL 2423138 at *6. Accord Comision, 617 F.Supp. at 485 ("[T]he Supreme Court has not addressed the application of § 1782 to arbitral tribunals, not even in dicta."); Dubey, 949 F.Supp.2d at 994 ("The Intel court never addressed this issue and instead focused its discussion on whether a `tribunal' includes `quasi-judicial agencies' such as the European Commission."). Instead, the court considered four questions regarding the scope of Section 1782: (1) whether a complainant before the European Commission is an "interested person" under Section 1782; (2) whether the proceeding before the European Commission qualified as a "tribunal"; (3) whether a proceeding must be pending or imminent for an applicant to invoke Section 1782; and (4) whether Section 1782 contains a foreign-discoverability requirement. Id. at 246-47, 253.
In determining the second question, the Intel court noted that Section 1782 had undergone a "complete revision" in 1964, during which "Congress deleted the words `in any judicial proceeding pending in any court in a foreign country,' and replaced them with the phrase `in a proceeding in a foreign or international tribunal.'" Id. at 248-49 (emphasis omitted). The Supreme Court reasoned that through the 1964 revisions, Congress intended to broaden the ambit of Section 1782 to apply not only judicial proceedings but also to administrative and "quasi-judicial proceedings." Id. at 257-58 ("Congress understood that change to provide the possibility of U.S. judicial assistance in connection with administrative and quasi-judicial proceedings abroad.") (formatting and quotation omitted). As further support for this proposition, the Intel court cited the Senate Report and two footnotes from a law review article authored by Professor Hans Smit, who served as the Reporter to the International Rules Commission. Id. at 258 (citing Smit, International Litigation under the United States Code, 65 Colum. L.Rev. 1015, 1026-27 nn. 71, 73 (1965)). The citation to Smit included a parenthetical in which the court quoted the following language from the footnotes: "[T]he term `tribunal' . . . includes investigating magistrates, administrative and arbitral tribunals, and quasi-judicial agencies, as well as conventional civil, commercial, criminal, and administrative courts." Id. (ellipsis in original, emphasis added). The court then "examined the function and procedures of the European Commission, finding that its role as a first-instance decisionmaker, its ability to permit the gathering and submission of evidence, its authority to determine liability and impose penalties, its ability make a final disposition, and the judicial reviewability of the final decisions were key factors in holding that it had `no warrant to exclude the European Commission . . . from §1782(a)'s ambit.'" Dubey, 949 F. Supp. 2d at 993 (quoting Intel, 542 U.S. at 258 and referencing id. at n. 9).
Two words from a law review article quoted by the Supreme Court in support of a different proposition have spawned disharmony in the courts regarding whether Section 1782 applies to private arbitrations established by contract. Some courts, relying heavily on Intel's citation to Professor Smit's view that the term "tribunal" includes "arbitral tribunals," have found that private arbitrations established by contract are "tribunals" within the meaning of Section 1782. See In re Roz Trading Ltd., 469 F.Supp.2d 1221 (N.D.Ga. 2006); Hallmark, 534 F.Supp.2d at 956; In re Application of Babcock Borsig AG, 583 F.Supp.2d 233 (D.Mass. 2008); Comision Ejecutiva Hidroelectrica del Rio Lempa v. Nejapa Power Co., LLC, No. CIV.A. 08-135-GMS, 2008 WL 4809035, at *1 (D. Del. Oct. 14, 2008); Winning, 2010 WL 1796579 at *7. These courts have found that the Second and Fifth Circuit's pre-Intel determinations that private arbitrations are not "tribunals" are no longer persuasive after Intel. See, e.g., Babcock, 583 F.Supp.2d at 239 ("I do not find the reasoning in [NBC] and [Biedermann] to be persuasive, particularly in light of the subsequent Supreme Court decision in Intel."); Roz, 469 F.Supp.2d at 1226 ("Both of these cases were decided five years before Intel. Their reasoning, and particularly that of [NBC], is materially impacted by Intel."). See also Winning, 2010 WL 1796579 at *7; Hallmark, 534 F.Supp.2d at 956.
Other courts have also examined the issue post-Intel and concluded that private arbitrations are not "tribunals" for purposes of applying Section 1782. See Comision, 617 F.Supp.2d at 486; Operadora, 2009 WL 2423138 at *12; Dubey, 949 F. Supp. 2d at 993; In Re an Arbitration in London, England between Norfolk Southern Corp., Norfolk Southern Railway Co., and General Security Insurance Co. and Ace Bermuda, Ltd., 626 F.Supp.2d 882 (N.D.Ill. 2009).
Having reviewed the language of Section 1782, its legislative history, and the above cases, this court concludes that private arbitrations established by contract do not fall within the meaning of "tribunal" under Section 1782. The Second Circuit's analysis in NBC is especially instructive. There, the court was also considering whether a private arbitration governed by Rules of the ICC was a "tribunal." The court first looked to the language of the statute itself, and concluded that "the term `foreign or international tribunal' is sufficiently ambiguous that it does not necessarily include or exclude the arbitral panel at issue here." 165 F.3d at 188. Because the court found the language of Section 1782 ambiguous regarding the inclusion or exclusion of private arbitrations, it then "look[ed] to legislative history and purpose to determine the meaning of the term in the statute." Id.
Examining the legislative history, the Second Circuit first turned to the House and Senate committee reports on the 1964 amendments to Section 1782. The court noted that the current version of Section 1782 replaced the former language limiting assistance to "judicial proceedings" in any "court" with more expansive language providing discovery assistance to "a proceeding in a foreign or international tribunal." Id. at 189. The NBC court observed that the House and Senate committee reports stated that "[t]he word `tribunal' is used to make it clear that assistance is not confined to proceedings before conventional courts," to which the predecessor statute had been expressly limited. Id. (quoting H.R.Rep. No. 88-1052, at 9 (1963) and citing S.Rep. No. 88-1580 (1964), reprinted in 1964 U.S.C.C.A.N. 3782, 3788). But this expansion of Section 1782's scope was only meant to include governmental entities:
Id. at 190. The House and Senate committee reports made no reference to private arbitration proceedings, and the NBC court reasoned that "[t]he absence of any reference to private dispute resolution proceedings such as arbitration strongly suggests that Congress did not consider them in drafting the statute." Id. at 189.
The court then turned to the "legislative history behind the replacement of §§ 270-270g" and found it "even more compelling than that behind the revisions to old § 1782." The court observed that the term "international tribunal" as used in Section 1782 was derived from 22 U.S.C. §§ 270-270g, which the 1964 amendments repealed. The prior version of Sections 270-270g "authorized commissioners or members of international tribunals to administer oaths, to subpoena witnesses or records, and to charge contempt." Id. at 189. "There is no question that the [earlier version of Section 270-270g] applied only to intergovernmental tribunals," as Congress had enacted those provisions in "direct response to problems that arose in an arbitration proceeding between the United States and Canada . . . . [and] proceedings before the United States-German Mixed Claims Commission." Id. The court stated that "[i]t bears underscoring that those international arbitrations were intergovernmental, not private, arbitrations. More importantly, the old statute applied only to international tribunals `established pursuant to an agreement between the United States and any foreign government or governments.'" Id. at 189-90. The amended Section 1782 broadened the scope of Sections 270-270(g) "by extending the reach of the surviving statute to intergovernmental tribunals not involving the United States." Id. at 190. However, the court found "no indication that Congress intended for the new provisions to reach private international tribunals, which lay far beyond the realm of the earlier statute." Id.
The NBC court concluded that "[i]n sum, the legislative history reveals that when Congress in 1964 enacted the modern version of § 1782, it intended to cover governmental or intergovernmental arbitral tribunals and conventional courts and other state-sponsored adjudicatory bodies." Id. at 190. It found that Congress' "silence with respect to private tribunals is especially telling because a significant congressional expansion of American judicial assistance to international arbitral panels created exclusively by private parties would not have been lightly undertaken by Congress without at least a mention of this legislative intention." Id.
The NBC court did not stop with the legislative history of the 1964 amendments; it also noted that the broad American-style discovery afforded by Section 1782 would be at odds with the purpose of private arbitration:
Id. at 190-91.
Finally, the NBC court also noted that interpreting Section 1782 to allow "such broad discovery in proceedings before `foreign or international' private arbitrators would stand in stark contrast to the limited evidence gathering provided in 9 U.S.C. § 7 for proceedings before domestic arbitration panels."
In Biedermann, the Fifth Circuit followed NBC and also held that a private arbitral proceeding is not a foreign or international tribunal under Section 1782. 168 F.3d at 881. Like the NBC court, Biedermann found the term "foreign or international tribunal" to be ambiguous regarding the inclusion or exclusion of private arbitrations. The Court reviewed the legislative history of the 1964 amendments and found "no contemporaneous evidence that Congress contemplated extending § 1782 to the then-novel arena of international commercial arbitration." Id. at 882. The Fifth Circuit also noted the policy concerns with extending Section 1782 to private arbitrations. Id. at 883 ("Empowering arbitrators, or worse, the parties, in private international disputes to seek ancillary discovery through the federal courts does not benefit the arbitration process. Arbitration is intended as a speedy, economical, and effective means of dispute resolution."). Finally, the court acknowledged the discord between Section 7 of the FAA and a broad reading of Section 1782. Id. ("It is not likely that Congress would have chosen to authorize federal courts to assure broader discovery in aid of foreign private arbitration than is afforded its domestic dispute-resolution counterpart.").
Biedermann was explicitly upheld in the Fifth Circuit's unpublished post-Intel decision in El Paso Corp., supra n. 4, 341 Fed. Appx. at 34 ("[W]e remain bound by our holding in Biedermann."). The El Paso court reviewed Intel, and found that nothing in that case affected the analysis of the Biedermann court:
Id.
This court concurs with the reasoning of the NBC and Biedermann courts regarding the ambiguity of the statutory language and the clearer instruction of the legislative history and policy considerations, and concludes that private arbitrations established by contract are not "tribunals" under Section 1782. This court further concurs with El Paso, Operadora, and Dubey in finding that nothing in Intel affects the analysis of the NBC and Biedermann courts. See Operadora, 2009 WL 2423138 at *1 ("[T]he reasoning of the district courts in Roz Trading, Babcock, and Hallmark that the Supreme Court has embraced § 1782 assistance for private arbitral proceedings . . . . relied primarily on the Supreme Court's inclusion of the phrase `arbitral tribunal' in a parenthetical quotation. The quotation is lifted from a footnote in Professor Smit's International Litigation article, which the Supreme Court cited merely to support the proposition that § 1782 applies to administrative and quasi-judicial proceedings. This Court is confident that the Supreme Court would not have expanded § 1782 to permit discovery assistance in private arbitral proceedings and reversed NBC and Biedermann—without even acknowledging their existence—in a parenthetical quotation supporting an unrelated proposition."); Dubey, 949 F.Supp.2d at 994-95 ("Intel did not intend to expand the meaning of `foreign or international tribunal' to include private arbitrations" because the Intel court did not address the issue, and courts finding otherwise "relied too heavily on the Supreme Court's inclusion" of the Smit quote).
Even among those courts concluding that the term "tribunal" does not necessarily extend to private arbitrations, there is a split as to whether Section 1782 categorically excludes private arbitrations
Because the court declines to permit the discovery requested by GUPC pursuant to Section 1782, GUPC's motion to compel URS to respond to that discoovery is
For the above-stated reasons, GUPC's motion to compel is
The Intel court did note that "Congress left unbounded by categorical rules the determination whether a matter is proceeding `in a foreign or international tribunal,'" and so Intel "suggest[ed] guides for the exercise of district-court discretion." Id. But the guidelines suggested by Intel were directed to the question of whether the governmental entity at issue—the DG Competition of the European Commission—qualified as a tribunal. Nothing in Intel requires a functional analysis where the proceeding is before a non-governmental entity, and nothing in Intel prohibits all categorical limitations on the meaning of the term "tribunal." A federal court should be able to determine that certain types of decision-making forums are outside the purview of Section 1782 without having to engage in an inefficient, resource-consuming functional analysis. For example, a federal court should be able to reject a Section 1782 application from a caucus of Belgian private school students empowered to arbitrate a dispute arising under their academic rules without having to first consider the caucus' role as a first-instance decisionmaker. Accord Norfolk, 626 F.Supp.2d at 885 ("[A]lthough the Intel Court acknowledged the ways in which Congress has progressively broadened the scope § 1782, it stopped short of declaring that any foreign body exercising adjudicatory power falls within the purview of the statute.").
