On June 13, 2022, in ZF Automotive US, Inc. v. Luxshare, Ltd., the U.S. Supreme Court narrowed the scope of 28 U.S.C. § 1782 (“Section 1782”) by holding that “only a governmental or intergovernmental adjudicative body” is a “foreign or international tribunal” under Section 1782 and that Section 1782 does not apply to private arbitration. The Supreme Court’s decision resolved a circuit split over the scope of Section 1782. The Second, Fifth, and Seventh Circuit Courts of Appeal had held that a “foreign or international tribunal” does not include private arbitration panels, while the Fourth and Sixth Circuits disagreed.

The ZF Automotive decision did not specify whether arbitral tribunals constituted under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID tribunals) qualified as “foreign or international tribunals” under Section 1782. Recent decisions out of the Eastern and Southern Districts of New York further restricted the use of Section 1782 and concluded that ICSID tribunals established to resolve investor-state arbitrations did not qualify as “foreign or international tribunals” under Section 1782. In In re Webuild and In re Alpene, the New York district courts in 2022 found no material difference between ICSID tribunals and the arbitration tribunal convened in accordance with the UNCITRAL Rules¹ at issue in ZF Automotive, all of which are convened pursuant to investment treaties between contracting states. For the district courts, the treaty parties did not indicate an intent to imbue the ICSID tribunals with “governmental authority,” so as to qualify as a “governmental or intergovernmental adjudicative bod[y]” with privileges of assistance under Section 1782.

While the Supreme Court’s ruling, as well as subsequent district court decisions, narrow the reach of Section 1782 and remove the option for parties in a non-governmental or non-intergovernmental proceeding to seek foreign discovery, parties to a private arbitration may turn to New York’s Civil Practice Law and Rules (CPLR) § 3102 to obtain discovery in aid of arbitration from parties who are subject to the jurisdiction of New York courts.

Specifically, CPLR § 3102(c) provides:

Under CPLR § 3102(c), a party may initiate a special proceeding, which is commenced by a notice of petition or an order to show cause and a petition to obtain discovery in aid of arbitration. Bumpus v. New York City Transit Auth., 66 A.D.3d 26, 33 (2009).

Parties who seek discovery in aid of arbitration under CPLR § 3102(c) may benefit by obtaining discovery that is otherwise not available through the arbitration or under the applicable arbitration rules. For example, a party may use CPLR § 3102(c) to help frame a complaint and to obtain the identity of prospective defendants, once a party has determined it has a viable cause of action. See Leff v. Our Lady of Mercy Acad., 150 A.D.3d 1239, 1240 (2017); see, e.g., In re Vtrader Pro, LLC, 24 Misc.3d 828, 830-31 (Sup. Ct. 2009) (ordering issuance of subpoena to discover proper parties for FINRA arbitration); Matter of Moock v. Emanuel, 99 A.D.2d 1003, 1004 (1984) (ordering discovery of the books and records of the partnership in aid of arbitration); Urb. v. Hooker Chemicals & Plastics Corp., 75 A.D.2d 720, 720 (1980) (ordering disclosure of the identity of persons involved and related records to aid in framing the complaint).

A party seeking disclosure in aid of arbitration under CPLR § 3102(c) must show that extraordinary circumstances are present. Guilford Mills, Inc. v. Rice Pudding, Ltd., 90 A.D.2d 468, 468 (1982). The test is necessity rather than convenience. See Hendler & Murray, P.C. v. Lambert, 127 A.D.2d 820, 820 (1987) (concluding that the court did not abuse its discretion in granting the discovery requested in aid of arbitration because the respondent demonstrated that the documents are required “to present a proper case to the arbitrator”).

While the use of CPLR § 3102(c) to obtain discovery in aid of arbitration seems infrequent, CPLR § 3102(c) nonetheless may serve as an alternate, useful discovery tool in private arbitration given the narrowed scope of Section 1782. See, e.g., Zampolli v. Range Devs., 2019 WL 5394487, at *2 (N.Y. Sup. Ct. Oct. 22, 2019) (directing respondent-entity to respond to subpoena duces tecum under CPLR § 3102(c) in order to aid pending arbitration in London when petitioner has demonstrated that requested documents “are required ‘in order to present a proper case in arbitration.’”); Cusimano v. The Strianese Family Ltd. Partnership, 2010 WL 3974909 (N.Y. Sup. Ct. Oct. 05, 2010) (directing deposition pursuant to CPLR 3102(c) in order to aid arbitration and explaining that CPLR § 3102(c) authorizes the Court to order disclosure in a matter that has been referred to arbitration). In connection with the discovery requests, New York courts also regularly grant stays of arbitration to permit discovery under Section 3102(c), particularly in insurance-related arbitration. See Nationwide Affinity Ins. Co. v. Mannese, 2017 WL 2261146, at *3 (N.Y. Sup. Ct. Apr. 04, 2017) (staying insurance arbitration and compelling the respondent, under CPLR 3102(c), to comply with petitioner's outstanding pre-arbitration requests to produce); New York Cent. Mut. Fire Ins. Co. v. Serpico, 45 A.D.3d 598 (2007) (reversing branch of insurer’s motion that denied insurer’s request to temporarily stay arbitration of an uninsured motorist claim to allow for discovery in aid of arbitration).

The below table compares features of Section 1782 to CPLR § 3102(c).

In light of the recent narrowing of Section 1782 as a private-arbitration discovery tool, parties should be aware that CPLR § 3102(c) is available as a suitable replacement for seeking discovery to aid in arbitration from an individual or entity located in New York. CPLR § 3102(c) is available both pre-arbitration, when potential respondents are being identified, as well as during an arbitration to ascertain information that otherwise is not discoverable through the proceeding. Parties should keep in mind the availability of this useful discovery tool whenever they consider an arbitral proceeding with some connection to New York or where potential parties and/or witnesses may reside therein.

¹ United Nations Commission on International Trade Law rules (UNCITRAL Rules).