NBC v. Bear Stearns & Co. - 165 F.3d 184 (2d Cir. 1999)

Rule:

The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. 28 U.S.C.S. § 1782(a). 

Facts:

National Broadcasting Company, Inc. and NBC Europe, Inc. (jointly, "NBC"), respondents in an arbitration proceeding in Mexico initiated by the Mexican television broadcasting company TV Azteca S.A. de C.V. ("Azteca"), appealed from an order of the United States District Court for the Southern District of New York quashing subpoenas directed by NBC to Azteca's investment bankers and advisors, Bear Stearns & Co., Inc., Merrill Lynch & Company, Salomon Brothers, Inc., SBC Warburg, Inc. and Violy Byorum & Partners (the "Third Parties") and denying NBC's cross-motion to enforce the subpoenas. The district court quashed the subpoenas, concluding that 28 U.S.C. § 1782, which gives United States courts the authority to order testimony or production of evidence for use "in a proceeding in a foreign or international tribunal," does not apply to private commercial arbitration under the auspices of non-governmental organizations.

Issue:

Was a commercial arbitration conducted in Mexico under the auspices of the International Chamber of Commerce, a private organization headquartered in France, a "proceeding in a foreign or international tribunal" as those words are used in 28 U.S.C. § 1782?

Answer:

No.

Conclusion:

The court held that a commercial arbitration conducted in Mexico under the auspices of the International Chamber of Commerce was not a "proceeding in a foreign or international tribunal" as those words are used in 28 U.S.C. § 1782. The court began its analysis with the language of the statute, particularly the phrase "foreign or international tribunal," which was not defined in the statute. The court looked at the legislative history of § 1782 and concluded Congress did not intend to include international arbitral panels created exclusively by private parties. Policy considerations reinforced the court's conclusion.