## Facts

- Norfolk Southern Corporation, Norfolk Southern Railway Company, and General Security Insurance Company (collectively, Norfolk Southern) entered insurance/reinsurance arrangements with Ace Bermuda Ltd. (ACE).
- The relevant contracts included arbitration clauses requiring disputes to be arbitrated in London, England, and providing that the parties would waive rights to appeal an arbitral decision in court.
- A coverage dispute arose regarding losses tied to a train derailment in Graniteville, South Carolina.
- The parties commenced a contract-based commercial arbitration seated in London under arbitration provisions in a reinsurance policy issued by ACE (with General Security as the “Named Entity” and Norfolk Southern as the “Named Insured”).
- Norfolk Southern applied in the U.S. District Court for the Northern District of Illinois under 28 U.S.C. § 1782(a), seeking an order compelling a deposition in Chicago of Scott Carey, a non-party and former counsel who had represented ACE and other insurance/reinsurance companies.
- Norfolk Southern argued Carey had personal knowledge of facts relevant to the coverage dispute and that his testimony was sought “for use” in the ongoing London arbitration.
- Carey opposed the application, arguing § 1782 does not authorize discovery for use in a purely private foreign arbitration and is limited to proceedings before entities exercising governmental or state-derived adjudicative authority.
- ACE also opposed the motion, but the court stated Carey’s arguments were sufficient to decide the request and addressed only Carey’s opposition.

## Issues

1. Whether a private, contract-created commercial arbitration seated in London qualifies as a “proceeding in a foreign or international tribunal” under 28 U.S.C. § 1782(a).
2. If the London arbitration is not such a tribunal, whether the district court lacks statutory authority to order Carey’s deposition for use in that arbitration.

## Decision

- The court denied Norfolk Southern’s § 1782 application.
- The court held the London proceeding was a purely private arbitration formed by contract and therefore was not a “foreign or international tribunal” within the meaning of § 1782(a).
- The court read Intel Corp. v. Advanced Micro Devices, Inc. as not extending § 1782 to every body exercising adjudicatory power; instead, it treated Intel’s references to “arbitral tribunals” as consistent with state-sponsored or intergovernmental arbitral bodies, not private commercial panels.
- Relying on (and finding persuasive) pre-Intel circuit authority such as NBC v. Bear Stearns (2d Cir.) and Republic of Kazakhstan v. Biedermann International (5th Cir.), the court concluded Congress did not intend § 1782 to reach private commercial arbitrations.
- Because the statutory prerequisite was not met, the court did not need to conduct a detailed analysis of discretionary considerations for granting § 1782 relief.

## Legal Principles

- Section 1782(a) authorizes a federal district court to order testimony or document production only when the discovery is “for use in a proceeding in a foreign or international tribunal.”
- A “foreign or international tribunal” for § 1782 purposes refers to adjudicative bodies exercising authority connected to a foreign state or multiple states (for example, governmental, state-sponsored, or intergovernmental bodies), not a panel created solely by private agreement.
- Intel’s discussion of “arbitral tribunals” does not require treating all private foreign commercial arbitrations as covered tribunals; courts may distinguish between state-sponsored arbitration and arbitration that is purely contractual.
- If the target proceeding is not a covered “foreign or international tribunal,” a district court lacks statutory authority under § 1782(a) to compel discovery, and the request must be denied without reaching discretionary factors.

## Conclusion

The Northern District of Illinois denied Norfolk Southern’s request under 28 U.S.C. § 1782 to depose a non-party former lawyer for ACE because the evidence was sought for use in a private, contract-based London insurance arbitration, which the court held was not a “foreign or international tribunal” within the statute’s scope.


In re Arbitration in London, England Between Norfolk Southern Corp. et al. & Ace Bermuda Ltd, 2009 U.S. Dist. LEXIS 49827 (2009)