The US District Court for the Southern District of New York has permitted the applicant to take discovery from a non-party located in New York for use in an arbitration pending before the London Maritime Arbitration Association (LMAA). The court permitted the application made under 28 U.S.C. § 1782, which permits a US district court to order a person found or resident in the district to provide information or documents "for use in a proceeding in a foreign or international tribunal."

The decision is controversial because appellate precedent holds that private arbitrations are not proceedings under section 1782 (see Nat'l Broadcasting Co. v. Bear Stearns & Co., 165 F.3d 184, 185 (2d Cir. 1999)) (Nat'l Broadcasting). The judge in the case at hand opined that the Nat'l Broadcasting holding was called into question by dicta in a US Supreme Court case that did not involve arbitration (Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004)) (Intel). In Intel, the Supreme Court quoted a law review article by Professor Hans Smit, one of the drafters of the 1964 revisions to section 1782, which stated that the term "tribunal" includes "investigating magistrates, administrative and arbitral tribunals, and quasi-judicial agencies, as well as conventional civil, commercial, criminal, and administrative courts" (Intel, 542 U.S. at 258). The reference to Professor Smit's definition of "tribunal," which includes the word "arbitral," has created significant confusion among judges about whether parties to international commercial arbitrations can take advantage of section 1782.

For further discussion on this subject, see Practice note, Compelling Evidence from Non-Parties in Arbitration in the US.

Case: In re Ex Parte Application of Kleimar N.V., (S.D.N.Y. Nov. 16, 2016).