In Re: Application to Obtain Discovery for Use in Foreign Proceedings.
FedEx Corporation, Respondent-Appellee. Abdul Latif Jameel Transportation Company Limited, Movant-Appellant,
Argued: August 8, 2019
from the United States District Court for the Western
District of Tennessee at Memphis. No. 2:18-mc-00021-Jon
Phipps McCalla, District Judge.
Livshiz, FRESHFIELDS BRUCKHAUS DERINGER, U.S. LLP, New York,
New York, for Appellant.
T. French, FEDERAL EXPRESS CORPORATION, Memphis, Tennessee,
Livshiz, Linda H. Martin, Paige von Mehren, FRESHFIELDS
BRUCKHAUS DERINGER, U.S. LLP, New York, New York, Shea Sisk
Wellford, MARTIN, TATE, MORROW & MARSTON, P.C., Memphis,
Tennessee, for Appellant.
T. French, Colleen Hitch Wilson, FEDERAL EXPRESS CORPORATION,
Memphis, Tennessee, for Appellee.
Before: COLE, Chief Judge; GRIFFIN and BUSH, Circuit Judges.
K. BUSH, Circuit Judge.
Jefferson once counseled his nephew Peter Carr on how to
think: "Fix reason firmly in her seat, and call to her
tribunal every fact, every opinion." This case calls
upon us to do just that. We must decide whether Abdul Latif
Jameel Transportation Company Limited ("ALJ"), a
Saudi corporation, may rely on 28 U.S.C. § 1782(a) to
discover facts from FedEx Corporation ("FedEx
Corp."), a U.S.-based corporation, for use in a
commercial arbitration pending in a foreign country. Under
§ 1782(a), a federal district court may order discovery
"for use in a proceeding in a foreign or international
tribunal" upon application by "any interested
person." Jefferson used the word "tribunal" in
a metaphorical sense to refer to the mind. We must decide
whether Congress used the words "foreign or
international tribunal" in a literal sense that includes
the commercial arbitration involved here.
§ 1782(a) discovery application, ALJ sought a subpoena
for documents from FedEx Corp. and deposition testimony of a
corporate representative of that company. ALJ alleges that
FedEx Corp. was involved in contract negotiations and
performance of two contracts between ALJ and FedEx
International Incorporated ("FedEx International"),
a subsidiary of FedEx Corp. Each contract became the subject
of a commercial arbitration, one pending in Dubai in the
United Arab Emirates ("UAE"), the other brought in
the Kingdom of Saudi Arabia. As explained below, we only
address the availability of discovery for the Dubai
arbitration because the arbitration in Saudi Arabia was
dismissed, rendering moot ALJ's application as it
pertains to this latter proceeding.
district court denied ALJ's application, holding that the
phrase "foreign or international tribunal" in
§ 1782(a) did not encompass either of the two
arbitrations. ALJ now appeals, arguing that the phrase
"foreign or international tribunal" does include
such proceedings and that ALJ's discovery request should
interpretive question is an issue of first impression in the
Sixth Circuit, although the Supreme Court provided guidance
for interpretation of § 1782(a) in Intel Corp. v.
Advanced Micro Devices, Inc., 542 U.S. 241 (2004). Upon
careful consideration of the statutory text, the meaning of
that text based on common definitions and usage of the
language at issue, as well as the statutory context and
history of § 1782(a), we hold that this provision
permits discovery for use in the private commercial
arbitration at issue. Accordingly, we
REVERSE the district court's denial of
ALJ's application and REMAND for the
district court to determine, in the first instance, whether
the application should be granted under four discretionary
factors the Supreme Court outlined in Intel to guide
Dispute Between ALJ and FedEx International
dispute over statutory linguistics arises from supply-chain
logistics. In 2014, after a period of negotiations, FedEx
International entered a "General Service Provider"
("GSP") contract with ALJ. Under that contract
(which was amended in 2015), ALJ agreed to be FedEx
International's delivery-services partner in Saudi
Arabia, where ALJ is incorporated. By agreement of the
parties, disputes relating to the GSP were to be arbitrated
in Dubai under the rules of the Dubai International Financial
Centre-London Court of International Arbitration
2016, FedEx International and ALJ entered another contract,
the Domestic Service Agreement ("DSA"), under which
FedEx International promised to provide ALJ with
"certain support services." R. 3, PageID 38. Those
parties also agreed to arbitrate disputes arising under the
DSA in Saudi Arabia under the rules and laws of that country.
FedEx International and ALJ signed the GSP contract but
before they entered the DSA, FedEx Corp.-the parent of FedEx
International and appellee in this case-acquired TNT Express
N.V. ("TNT"), a competitor in the delivery-services
market in Saudi Arabia. According to ALJ, it did not become
aware of the acquisition until it was already fait
parties disagree in part about the causes of the underlying
dispute. ALJ suggests that FedEx Corp. was significantly
involved in luring ALJ into a contractual relationship with
FedEx International. ALJ also indicates that FedEx Corp. and
FedEx International kept ALJ in the dark about the impending
TNT acquisition. According to ALJ, when it learned of the TNT
acquisition, FedEx Corp. and FedEx International misled ALJ
to believe that the future of its contractual relationship
with FedEx International was secure. ALJ contends that, for
several weeks during the fall of 2017, FedEx International
failed to provide ALJ with the support promised in the DSA.
Then, "without warning," according to ALJ, FedEx
International announced that it would not be renewing the GSP
contract and that ALJ would have to bid against other
potential contractors if it wanted to keep working with FedEx
International. Appellant Br. at 10.
Corp. responds that ALJ's brief overstates, and makes
false assertions about, FedEx Corp.'s involvement in the
negotiations and communications between FedEx International
and ALJ. Additionally, FedEx Corp. disagrees that FedEx
International was at fault in causing the ALJ-FedEx
International rift. According to FedEx Corp., the trouble
between ALJ and FedEx International started when ALJ began
providing unsatisfactory service; FedEx International sought
to work with ALJ but eventually gave up and decided to open
up ALJ's position as FedEx International's general
service partner in Saudi Arabia to bidding among various
factual disputes aside, ALJ and FedEx Corp. agree that
attempts to reconcile soon broke down completely. On March 4,
2018, ALJ commenced arbitration against FedEx International
(the "Saudi Arbitration") before a panel
constituted under the rules and laws of Saudi Arabia, as
provided in the DSA. A few weeks later, on March 21, FedEx
International commenced arbitration against ALJ (the
"DIFC-LCIA Arbitration") before a panel constituted
under the rules of the DIFC-LCIA, as provided in the GSP
DIFC-LCIA Arbitration panel consists of three members
appointed by the DIFC-LCIA Arbitration Centre. According to
FedEx Corp., the DIFC-LCIA Arbitration Centre is a joint
venture of the London Court of International Arbitration and
the DIFC Arbitration Institute. The DIFC Arbitration Institute,
in turn, was established by statute in the emirate of Dubai.
Awards of the arbitral panel are reviewable by the DIFC
Court, which was also established by statute in Dubai. The
DIFC Court reviews arbitral awards for procedural soundness
under the DIFC Arbitration Law, which was promulgated by the
Dubai government. In addition, if a party challenges an award
alleging inconsistency with UAE public policy, the award is
reviewed under the law of the UAE. Aside from these review
provisions, however, awards of the panel are binding on the
parties. A merits hearing in the pending DIFC-LCIA
Arbitration between ALJ and FedEx International is currently
scheduled for November 3–9, 2019.
the makeup and operations of the Saudi Arbitration panel, we
do not go into details because on April 30, 2019 (shortly
after ALJ filed this appeal), that panel issued an award
dismissing ALJ's claims. ALJ has challenged the dismissal
and is awaiting a decision. Below, in section II(A), we
explain why the dismissal of the Saudi Arbitration has
rendered moot the issues in this appeal as they pertain to
that arbitration proceeding.
Procedural History of ALJ's § 1782(a) Discovery
14, 2018, ALJ filed an application for discovery under 28
U.S.C. § 1782(a) against FedEx Corp. in the United
States District Court for the Western District of Tennessee,
the federal district where FedEx Corp. is headquartered. In
the application, ALJ sought to compel production of documents
from FedEx Corp. and to subpoena deposition testimony from a
corporate representative of FedEx Corp. Although FedEx Corp.
was not a party to either of ALJ's contracts with FedEx
International, ALJ sought, among many other pieces of
1. All Documents and Communications concerning the
negotiations of the Agreements between FedEx Corp. or FedEx
International, on the one hand, and ALJ, on the other hand.
2. All Documents or Communications concerning or reflecting
(i) any representations, assertions or assurances provided by
FedEx Corp. or FedEx International, or any agent thereof, to
ALJ, or any agent thereof, concerning the length of the
Agreements, or FedEx Corp. or FedEx International's
intent to enter into a long-term business relationship with
ALJ; and (ii) all any [sic] knowledge or awareness on the
part of FedEx Corp. or FedEx International of ALJ's need
to make investments in connection with ALJ's agreed-upon
provision of services to FedEx International.
R. 1-3, PageID 16.
district court held a hearing on ALJ's application on
July 17, 2018, and it denied the application in an order
dated March 13, 2019. In its order, the district court
determined that neither the Saudi Arbitration panel nor the
DIFC-LCIA Arbitration panel constituted a "foreign or
international tribunal" within the meaning of §
1782(a). Therefore, the district court held that ALJ could
not, as a matter of law, obtain discovery for use in those
proceedings under § 1782(a). The district court did not
consider whether it would have exercised its discretion to
grant ALJ's application under § 1782(a) had it
determined that either arbitration panel was a "foreign
or international tribunal."
timely filed a notice of appeal, and on April 12, 2019, it
moved this court to expedite the appeal in light of the
pending arbitration proceedings. On April 22, 2019, we
ordered an expedited briefing and argument schedule.
Whether the Saudi Arbitration Discovery Dispute is
turning to the statutory interpretation inquiry, we must
address a justiciability issue with regard to the Saudi
Arbitration. As noted, that proceeding has been dismissed,
and ALJ is appealing the dismissal. FedEx Corp. argues that
because the Saudi Arbitration is no longer pending, it
"is irrelevant to ALJ's § 1782 motion."
Appellee Br. at 9–10. Therefore, FedEx Corp. focuses
its substantive arguments on the DIFC-LCIA Arbitration only.
response, ALJ argues that if we determine that the question
regarding the Saudi Arbitration is moot and inappropriate for
merits consideration, we should vacate the district
court's denial of the § 1782(a) application with
respect to that arbitration. ALJ worries that the Saudi
Arbitration panel's dismissal may be reversed by a Saudi
court and that if we do not bifurcate the district
court's judgment and vacate as moot with respect to the
Saudi Arbitration, the district court's reasoning as to
that proceeding will stand and will preclude ALJ from
bringing a future application.
agree that the dismissal of the Saudi Arbitration makes the
interpretive question moot with respect to that arbitration.
Therefore, it would be inappropriate for us to make a merits
ruling on the question presented as it pertains to the Saudi
Arbitration panel. See Church of Scientology of Cal. v.
United States, 506 U.S. 9, 12 (1992). But ALJ's
preclusion fears are unfounded. ALJ brought one §
1782(a) application in the district court, relying on both
the DIFC-LCIA Arbitration and the Saudi Arbitration as
"foreign or international tribunal[s]" that would
trigger the statute's applicability. And the district
court entered one judgment rejecting both of ALJ's
proffered reasons for needing discovery. Our conclusion that
the DIFC-LCIA Arbitration panel is a "foreign or
international tribunal" is sufficient for us to reverse
that judgment and require the district court to consider
ALJ's application anew. Therefore, we need not address
the Saudi Arbitration, but the district court's judgment
will not remain in place, so that judgment will not preclude
a future application should ALJ want to bring one. See
Dodrill v. Ludt, 764 F.2d 442, 444 (6th Cir. 1985)
(noting that "the general rule is that a judgment which
is vacated, for whatever reason, is deprived of its
conclusive effect as collateral estoppel" as to all of
the issues litigated and decided in the action (emphasis
added) (citations omitted)); see generally id. at
444–45 (discussing and applying the rule).
Whether the DIFC-LCIA Arbitration Panel is a "Foreign or
now determine whether the DIFC-LCIA Arbitration panel
qualifies as a § 1782(a) "foreign or international
tribunal." Neither the phrase "foreign or
international tribunal" nor the word
"tribunal" is defined in the statute, and the
parties dispute whether the word "tribunal"
includes a privately contracted-for commercial arbitration.
The district court concluded that it does not.
review the district court's decision on a question of
statutory interpretation-a legal question-de novo. See
United States v. Kassouf, 144 F.3d 952, 955 (6th Cir.
1998). "In determining the meaning of a statutory
provision, we look first to its language, giving the words
used their ordinary meaning." Artis v. District of
Columbia, 138 S.Ct. 594, 603 (2018) (citation and
internal quotation marks omitted). And ordinary meaning is to
be determined retrospectively: we must go back to "the
time Congress enacted the statute" and discern its
meaning from that point in the past. See New Prime Inc.
v. Oliveira, 139 S.Ct. 532, 539 (2019) (citations
omitted); see also Wisc. Cent. Ltd. v. United
States, 138 S.Ct. 2067, 2070 (2018).
we can sometimes determine the ordinary meaning of words in a
statute by reference to dictionaries in use at the time the
statute was enacted. See Food Marketing Inst. v. Argus
Leader Media, 139 S.Ct. 2356, 2363–64 (2019).
Here, the relevant language was added to § 1782(a) by
amendment in 1964, see Intel Corp. v. Advanced Micro
Devices, Inc., 542 U.S. 241, 248–49 (2004), so we
may consult dictionaries in use at that time. In addition, we
may consult subsequently published dictionaries. See
Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 419 ("Scalia &
Garner, Reading Law") ("Dictionaries tend
to lag behind linguistic realities . . . ."). However,
we use later-published dictionaries carefully and would
hesitate to rely upon definitions appearing solely
in dictionaries published more than a decade or so after the
may consider other evidence of usage in the years preceding
the enactment: for example, the sense in which courts used a
particular word or phrase. See New Prime, 139 S.Ct.
at 540 (looking to early-20th-century cases' use of the
term "contract of employment" as an aid to
determining the meaning of that phrase in a 1925 statute);
see also Argus Leader Media, 139 S.Ct. at 2363. As a
respected treatise on statutory interpretation notes, the
context of a statute's text includes "a ...