## Facts

- Babcock Borsig AG (BBAG), a German company, previously litigated in federal court against Babcock Power Inc. (BPI) over alleged interference with BBAG’s asset sale to Babcock-Hitachi K.K. (Hitachi).
- BBAG and BPI resolved that earlier dispute through a settlement containing a broad general release in BPI’s favor covering all claims, including future claims, arising from the transaction.
- After settling with BPI, BBAG anticipated bringing a private arbitration under the International Chamber of Commerce (ICC) rules against Hitachi concerning the asset sale, but had not yet commenced the arbitration.
- BBAG filed an application under 28 U.S.C. § 1782 in the District of Massachusetts seeking documents and depositions from BPI for use in the anticipated ICC arbitration.
- BPI and Hitachi opposed, arguing the request sought to bypass ICC disclosure limits, re-open matters addressed by the settlement and release, and pursue speculative pre-arbitration discovery without showing the ICC tribunal would want or admit it.

## Issues

1. Whether discovery is “for use in a proceeding in a foreign or international tribunal” under 28 U.S.C. § 1782 when the only identified proceeding is a not-yet-commenced, anticipated ICC arbitration.
2. Whether, assuming the statutory prerequisites are met, the court should deny § 1782 relief in its discretion under Intel factors, considering tribunal receptivity, circumvention concerns, timing, and the effect of a prior settlement release.

## Decision

- The court denied BBAG’s § 1782 application.
- The court assumed without deciding that BBAG satisfied threshold statutory requirements (including that an ICC arbitration could qualify as a covered “tribunal”), and resolved the matter on discretionary grounds.
- Applying Intel, the court found no showing that the ICC tribunal would be receptive to the requested U.S.-style discovery, and the arbitration was only contemplated rather than pending.
- The court credited concerns that the application functioned as an attempt to bypass ICC proof-gathering limits.
- The court concluded that compelling discovery from BPI would conflict with the expectations created by the prior settlement and broad release and would impose inequitable burdens by pulling BPI back into costly discovery tied to the settled transaction.

## Legal Principles

- Even when § 1782’s statutory requirements are met, district courts retain broad discretion to grant or deny discovery, guided by Intel’s nonexclusive factors.
- A contemplated but not-yet-initiated foreign proceeding weakens the showing that requested evidence is “for use” in a qualifying proceeding and supports denying discretionary relief.
- Courts may deny § 1782 applications where there is no concrete indication the foreign tribunal would accept or welcome the discovery.
- Section 1782 should not be used to circumvent foreign or arbitral proof-gathering limits or policies.
- A prior settlement and broadly worded release may weigh heavily against ordering post-settlement discovery from the released party when such discovery would undermine the bargain and impose renewed dispute-related burdens.

## Conclusion

The court exercised its discretion to deny § 1782 discovery sought for a merely anticipated ICC arbitration, emphasizing the absence of proof of tribunal receptivity, the risk of circumventing ICC procedures, the speculative timing of the request, and the inequity of compelling discovery from a party protected by a broad settlement release.


In re Application of Babcock Borsig AG, 583 F. Supp. 2d 233 (D. Mass. 2008)