Respondents Brief — Servotronics, Inc., Petitioner v. Rolls-Royce PLC, et al.

No. 20-794

IN THE

Supreme Court of the United States

SERVOTRONICS, INC.,

Petitioner,

v.

ROLLS-ROYCE PLC AND

THE BOEING COMPANY,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF FOR RESPONDENT

THE BOEING COMPANY

MICHAEL S. PAISNER ERIC B. WOLFF

DAVID H. KoyszA SCOTT P. MARTIN

THE BOEING COMPANY Counsel of Record

7755 E. Marginal Way S. LAURA HILL

Seattle, WA 98108 SOPEN SHAH

PERKINS COIE LLP

LUKE SOBOTA 1201 Third Avenue

KIMBERLY LARKIN Seattle, WA 98101

JULIA SHERMAN (206) 359-3600

THREE CROWNS LLP smartin@perkinscoie.com

3000 K Street, N.W.

Washington, D.C. 20007

Counsel for Respondent

The Boeing Company

i

QUESTION PRESENTED

Whether 28 U.S.C. § 1782(a), which permits district courts to order discovery “for use in a proceeding

in a foreign or international tribunal,” authorizes discovery for use in a private, contract-based arbitration.

ii

RULE 29.6 STATEMENT

The corporate disclosure statement included in

the brief in opposition remains accurate.

ili

TABLE OF CONTENTS

Page

QUESTION PRESENTED................cccccccccccceesssessneeees i

RULE 29.6 STATEMENT ................cccsssssssccececeeessessees ii

TABLE OF CONTENTS ..............cccccsssssssceeceeeeeesseens ili

TABLE OF AUTHORITIEG.................ccccescececeeeeeesseees Vv

OPINIONS BELOW ...........:.:cccccccccsssssssscccceccceesssssneaeees 1

JURISDICTION ...... ce ccccsssssssecccceeeesssssssnseeeeeeeesees 1

STATUTORY PROVISION INVOLVED..................06 1

INTRODUCTION ..............ccccccccccceecssssssscecceeeseceessesseees 2

STATEMENT. ..............cccccsccccccecessssssececeececeesesssseaeeeeees 3

SUMMARY OF ARGUMENT. ...............cccccccsssssstcceeeees 7

ARGUMENT. ............:ccccccccccecssssesnsceccecesessssnsnseeeeeeeeses 11

I. THIS COURT LACKS JURISDICTION BECAUSE

THE CASE IS MOOT, .............::scceecceeeesssssseseees 12

A. THERE IS NO LONGER A “CASE” OR

“CONTROVERSY.” ........ccscccccceeeessssseeeeeesenes 12

B. THE NARROW EXCEPTION FOR CLAIMS

THAT ARE “CAPABLE OF REPETITION

YET EVADING REVIEW” IS INAPPLICABLE

HERE, ...........ccceccsscsccesccssccecessceecesscnseenseuss 14

II. SECTION 1782(A) CANNOT BE USED

TO OBTAIN EVIDENCE FOR USE IN PRIVATE,

CONTRACT-BASED ARBITRATIONS. .........0ese00 16

A. THE STATUTORY PHRASE “FOREIGN OR

INTERNATIONAL TRIBUNAL” DOES NOT

INCLUDE PRIVATE, CONTRACT-BASED

ARBITRATIONS. .......sccesscescccssccnssceeveesccenecs 16

Iv

TABLE OF CONTENTS

(continued)

Page

B. STATUTORY CONTEXT CONFIRMS THAT A

PRIVATE, CONTRACT-BASED ARBITRATION

Is NOT A “TRIBUNAL.” ..........cececcecescscescees 22

C. LEGISLATIVE HISTORY CONFIRMS THAT

“FOREIGN OR INTERNATIONAL TRIBUNAL”

EXCLUDES PRIVATE, CONTRACT-BASED

ARBITRATION. ........cscccssccsssccscccesccsscesscecess 27

D. AN EXPANSIVE INTERPRETATION OF

SECTION 1782 WOULD CONFLICT WITH

THE FEDERAL ARBITRATION ACT............. 30

E. SERVOTRONICS’S INTERPRETATION OF

THE LANGUAGE OF SECTION 1782 IS

ETRRONEOUG. .......0.ccceccecescaccscaccscscscescececs 34

1. PASSING USES OF “TRIBUNAL” IN

OTHER CONTEXTS Do NOT

DETERMINE THE MEANING OF

SECTION 1782. ...........cccscsssccsvscsscceeveees 34

2. INTEL DID NoT IMPLICITLY DECIDE

THE QUESTION PRESENTED. ............6+- 36

3. SERVOTRONICS’S INTERPRETATION

OF SECTION 1782 WOULD RESULT IN

SERIOUS ADVERSE CONSEQUENCES. ...39

CONCLUSION 0.0... cece eeeeececccceeeeeeeeeseaeeeeeeeeeeeeneeees 46

Vv

TABLE OF AUTHORITIES

CASES

Al-Qarqaniv. Arab Am. Oil Co.,

No. 4:18-CV-1807, 2020 WL 6748031

(S.D. Tex. Nov. 17, 2020) ......eeeeeeeeeeeees

Al-Qarqaniv. Chevron Corp.,

No. C 18-03297 JSW, 2019 WL

4729467 (N.D. Cal. Sept. 24, 2019).........

Already, LLC v. Nike, Inc.,

568 U.S. 85 (2013)... eee eeeeeesseesennees

Baltimore Contractors v. Bodinger,

348 U.S. 176 (1955)... eeceeeeeceeeeeeeees

Bernhardt v. Polygraphic Co. of Am.,

350 U.S. 198 (1956)... ee eeeeeteeeeeee

City News & Novelty, Inc. v. City of

Waukesha,

5381 U.S. 278 (2001)... ee eeeeeeeeeeeeee

Comision Ejecutiva Hidroelectrica del

Rio Lempav. Nejapa Power Co.,

341 F. App’x 821 (3d Cir. 2009)........0.0e-+

COMSAT Corp. v. Nat] Sci. Found,

190 F.3d 269 (4th Cir. 1999)...

Home Depot U.S.A., Inc. v. Jackson,

139 S. Ct. 1743 (2019)... eeeeeeeeeee

Page(s)

v1

TABLE OF AUTHORITIES

(continued)

In re Application to Obtain Discovery

for Use in Foreign Proceedings,

939 F.3d 710 (6th Cir. 2019)............0.....

In re Dubey,

949 F. Supp. 2d 990 (C.D. Cal. 2013)...

In re Grupo Unidos Por El Canala S.A.,

No. 14-MC-80277, 2015 WL 1815251

(N.D. Cal. Apr. 21, 2015) ...... eee

In re Ishihara Chem. Co.,

251 F.3d 120 (2d Cir. 2001) ...................

In re Servotronics, Inc.,

No. 2:18-mc-00364-DCN, 2018 WL

5810109 (D.S.C. Nov. 6, 2018)...............

Intel Corp. v. Advanced Micro

Devices, Inc.,

542 U.S. 241 (2004)... eeeeeeeeeeees

Kawasaki Kisen Kaisha Ltd. v. Regal-

Beloit Corp.,

561 U.S. 89 (2010)... eee ceeeeeeeeee

Kingdomware Techs., Inc. v.

United States,

136 S. Ct. 1969 (2016)... eee

Lamps Plus, Inc. v. Varela,

139 S. Ct. 1407 (2019)... eee

Page(s)

Vii

TABLE OF AUTHORITIES

(continued)

Lorillard Tobacco Co. v. Reilly,

533 U.S. 525 (2001)... eeeeeeeeeeeeeee

Louisiana v. Mississippi,

202 U.S. 1 (1906)... eee eeeeeeeesereeereees

Mitsubishi Motors Corp. v. Soler

Chrysler-Plymouth, Inc.,

A73 U.S. 614 (1985)... ee ceeeeeeeeeeees

Murphyv. Hunt,

455 U.S. 478 (1982) (per curiam) ............

Nat! Broad. Co.v. Bear Stearns & Co.,

165 F.3d 184 (2d Cir. 1999)...

North American Commercial Co. v.

United States,

171 U.S. 110 (1898) 00... eeeeeeeeeee

Pereira v. Sessions,

138 S. Ct. 2105 (2018)... ee eeeeeee

Republic of Kazakhstan v.

Biedermann Inti,

168 F.3d 880 (5th Cir. 1999)...

Rochin v. California,

342 U.S. 165 (1952)... eee eeeeeeeeees

Scherk v. Alberto-Culver Co.,

A417 U.S. 506 (1974) oe eeeeeeeeeeesseeeeee

Vili

TABLE OF AUTHORITIES

(continued)

Servotronics, Inc. v. Boeing Co.,

954 F.3d 209 (4th Cir. 2020).............0...

Servotronics, Inc. v. Boeing Co.,

No. 19-1847 (7th Cir. May 8, 2020).......

Shapleigh v. Mier,

299 U.S. 468 (1937)... cecceseeereeereeeteens

St. Mary’s Med. Ctr. of Evansville, Inc.

v. Disco Aluminum Prods. Co.,

969 F.2d 585 (7th Cir. 1992)...

Stolt-Nielsen S.A. v. AnimalFeeds

Int1 Corp.,

559 U.S. 662 (2010)... eeeeeeereeeeeeee

Territory of Guam v. United States,

141 S. Ct. 1608 (2021)... eens

Underhillv. Hernandez,

168 U.S. 250 (1897)... cecceseesteeseeeees

United States v. Sanchez-Gomez,

138 S. Ct. 1532 (2018)... eee eeeeeeee

Vale S.A. v. BSG Res. Ltd,

No. 1:19-cv-03619-VSB (S.D.N.Y.

Apr. 23, 2019) ...cccccsccscsscceccesssesseeseceeeesven

Weinstein v. Bradford,

423 U.S. 147 (1975) (per curiam) ..........

1x

TABLE OF AUTHORITIES

(continued)

Page(s)

Whitman v. Am. Trucking Ass‘ns, Inc.,

531 U.S. 457 (2001)... ecccssseerreeceeeeeeesteenes 27

Wisc. Cent. Ltd. v. United States,

138 S. Ct. 2067 (2018)... ececeesessereeeeeeeeeees 35

STATUTES

3 ORs ORES 159-1 0 Pe 20

QUS.C. § 7 ieecccccccccccccssssssssneeceeseseesssssneeeeees 21, 30, 31

9 ULS.C. § 202 oo ecccccssenceeceeessssseneeeeeeeeeenees 21, 32

22 U.S.C. § 270 ooo ecescssseereceeceeeessnsneeeeeeeeeeeenees 26, 38

22 U.S.C. § 2708 0... eeeeesesesccccceeeseesesseneaeeeeeeeeesseseaees 26

yA 6 OR 41 |) oe 26

22 U.S.C. § 2706.00... ecccceesssseecececeecessesssececeeeeeesseteees 26

28 U.S.C. § 1254 ooo. ccccsseccceceeessssseneeeeeeeeessesteneaes 1

28 U.S.C. § 1696 00.0... ccesccccccecessssseseeeeeeeeessseeeeees 25

28 U.S.C. § 1781 oo... eee eeeecsesceeceeeeeenssseeeeeeeeeeeeees 24, 25

28 U.S.C. § 1782 oo. ccccscceeccsscceecssccssesscescees passim

30 U.S.C. § 1412 oo cccececceessssenececeeeeeeesessenees 20

AQ U.S.C. § 11706 000... eee cceccccccceseeesssseeeeceeeeeesseteees 23

x

TABLE OF AUTHORITIES

(continued)

Act of June 25, 1948, Pub. L. No. 80-

773, ch. 646, 62 Stat. 869.000... eee

Act of Dec. 30, 1963, Pub. L. 88-245, 77

NS) 2 A 0

Act of July 7, 1955, Pub. L. 84-138, ch.

279, 69 Stat. 264 oo... eeeeceeeeeeseeeeeeeees

Act of Oct. 3, 1964, Pub. L. 88-619, 78

Stat. 995 oe eeeessseeeeeeeeeeeeesssseeeeeees

Act of Sept. 2, 1958, Pub. L. No. 85-906,

72 Stat. 1748 ose eeeeeeeeeeceeeeseseeeeeees

Act of Sept. 22, 1922, Pub. L. 67-364, ch.

429, 42 Stat. 1048 oo cceeeeeeeeees

Convention on the Settlement of

Investment Disputes Act of 1966,

Pub. L. 89-532, 80 Stat. 344...

Deep Seabed Hard Mineral Resources

Act, Pub. L. 96-283, 94 Stat. 553

(1980)... ee eececceseeesenseeeesceseeeseesseeeseenes

District of Columbia Legal Aid Act, Pub.

L. 86-531, 74 Stat. 229 (1960)........0.00....

Federal Arbitration Act, 9 U.S.C. § 1 et

SOQ). vssccccccccccccnssssseccccecssnssssesecccessuaaeeseseeceees

.... Dassim

Xi

TABLE OF AUTHORITIES

(continued)

Government in the Sunshine Act, Pub.

L. 94-409, 90 Stat. 1241 (1976)................

Indian Civil Rights Act, Pub. L. 90-284,

82 Stat. 73 (1968)... ee eeeeeeesereeeeeees

CONSTITUTIONAL PROVISION

U.S. Const. art. ITT, $ 2... cc eeeceeeees

OTHER AUTHORITIES

1 Joseph Baretti, Dictionary of the

English and Italian Languages

(1760)... eee eeceeeeecceeeeeeeeeesseeeeeeeeeeeeeeneenes

1 M. Seoane, Neuman and Paretti'’s

Dictionary of the Spanish and

English Languages (5th ed. 1831)...........

1 Shabtai Rosenne, The Law and

Practice of the International Court,

1920-2005 (Ath ed. 2006) ..........eeeeeeeeeees

1 William Cobbett, A New French and

English Dictionary (1833).............0ccccceeee

3 Emmerich de Vattel, Law of Nations

or the Principles of Natural Law

(Charles G. Fenwick trans.,

Carnegie Inst. 1916) (1758) .................ce8

Xi

TABLE OF AUTHORITIES

(continued)

About HKIAC, Hong Kong Int'l

Arbitration Centre (1985),

https://www.hkiac.org/about-uS..............ccsecceeesees 40

Black’s Law Dictionary (4th ed. 1951).............00000008 19

Black’s Law Dictionary (4th ed. 1957).............00000008 24

Commentary on the Revised Text of the

2020 IBA Rules on the Taking of Evidence in International Arbitration

(Jan. 2021),

https://www.ibanet.org/MediaHandle

r?id=4F797338-693E-47C7-A92A-

L509 T9OECCOD.............cccccccsssessseeeeccceceesseseeeeeeess 45

David W. Rivkin & Barton Legum,

Attempts to Use Section 1782 to

Obtain US' Discovery in Aid of

Foreign Arbitrations, 14 Arb. Int’l

213 (1998) ............ccccccescceeecccceecceceeeeeeseeeeeesssssseeeeees 44

Dratt Convention on Judicial

Assistance, 33 Am. J. Int’1 L. Sup. 11

G.R. Delaume, Convention on the

Settlement of Investment Disputes

Between States and Nationals of

Other States, 1 Int] L. 64 (1966)............. eee 20

H.R. Rep. No. 88-1052... ceeeeeeeeeeeeeee 22, 28

Xiii

TABLE OF AUTHORITIES

(continued)

Hans Smit, Assistance Rendered by the

United States in Proceedings Before

International Tribunals, 62 Colum.

L. Rev. 1264 (1962) 00... eeeeeeeeeeeeees

Hans Smit, American Assistance to Litigation in Foreign and International

Tribunals: Section 1782 of Title 28 of

the U.S.C. Revisited, 25 Syracuse J.

Int'l L. & Comm. 1 (Spring 1998)............

Harry L. Jones, International Judicial

Assistance; Procedural Chaos and a

Program for Reform, 62 Yale L.J.

515 (1958) oo eee eeeeeeceeeeeeessesseaeeeeees

ICC celebrates case milestone,

announces record figures for 2019,

Int’] Chamber of Comm. (Jan. 9,

2020), https:/iccwbo.org/mediawall/news-speeches/icc-celebrates-

25000th-case-milestone-and-

announces-record-figures-for-2019/.........

International Chamber of Commerce,

ICC Dispute Resolution 2019

Statistics,

https://Aiccwbo.org/publication/icc-

dispute-resolution-statistics ...............0006

Page(s)

XiV

TABLE OF AUTHORITIES

(continued)

Is it Time For A Change?, Prague Rules

(Apr. 20, 2017),

https://praguerules.com/news/is-it-

time-for-a-change-/............cccccssssecceceeseeeees

Marike R.P. Paulsson, The 1958 New

York Convention in Action (2016)...........

Morris Ploscowe, The Investigating

Magistrate (Juge D’'Instruction) In

FHuropean Criminal Procedure, 33

Mich. L. Rev. 1010 (1935)... eee

Martin Domke, The Settlement of

Disputes in International Trade, 1

U. Ill. L. Forum 402 (1959).............cccc0000.

Oxtord Latin Dictionary (1982) ...........cccc0008

Roman Khodykin et al., A Guide to the

IBA Rules on the Taking of Evidence

in International Arbitration (2019).........

Rules on the Efficient Conduct of

Proceedings in International

Arbitration (Prague Rules), App. I,

https://praguerules.com/upload/medi

alibrary/9dc/9dc31ba7799e

26473d92961d926948c9.pdf.................006

Page(s)

seceeseeeees 45

XV

TABLE OF AUTHORITIES

(continued)

Status: Convention on the Recognition

and Enforcement of Foreign Arbitral

Awards (New York, 1958) (the “New

York Convention”), United Nations

Commission on International Trade

Law,

https://uncitral.un.org/en/texts/arbitr

ation/conventions/foreign_arbitral_a

WALAS/STATUS ..........ccsccecceccecceccscceceeceecneces

Thomas Dyche & William Pardon, A

New General English Dictionary

Webster's New International Dictionary

of the English Language (2d ed.

1 5°15 35) eee

Why SIAC, Singapore Int’! Arbitration

Centre (1991), https://siac.org.sg/64-

WHY-SIAC.........cccccssssesccceessccececeseeecceeeneeseess

Yves Derains, Jnternational Chamber of

Commerce Arbitration, 5 Pace L.

Rev. 591 (1985)... eee eeeeeeceeeeeeeneeeeeees

Page(s)

1

BRIEF FOR RESPONDENT

THE BOEING COMPANY

Respondent The Boeing Company respectfully

submits that the case should be dismissed as moot, or

in the alternative the judgment of the court of appeals

should be affirmed.

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la—

16a and J.A. 78a—93a) is reported at 975 F.3d 689. The

opinion of the district court (Pet. App. 17a—25a and

J.A. 69a—77a) is not reported but is available at 2019

WL 9698535.

JURISDICTION

The judgment of the court of appeals was entered

on September 22, 2020. The petition for a writ of certiorari was filed on December 7, 2020 and granted on

March 22, 2021. Petitioner Servotronics, Inc. invoked

this Court’s jurisdiction under 28 U.S.C. § 1254(1).

See Pet. 1. As discussed below, however, this Court

lacks jurisdiction because the case is now moot. See

infra at 13-17.

STATUTORY PROVISION INVOLVED

28 U.S.C. § 1782(a) provides in relevant part:

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....

The order may prescribe the practice and procedure, which may be in whole or part the

practice and procedure of the foreign country

or the international tribunal, for taking the

2

testimony or statement or producing the document or other thing. ...

INTRODUCTION

Servotronics has attempted to invoke 28 U.S.C.

§ 1782(a) to conduct extensive third-party discovery in

connection with its private, contract-based arbitration

against Rolls-Royce in the United Kingdom.

Servotronics and_ Rolls-Royce contractually

agreed that the arbitration would be governed by the

rules of the Chartered Institute of Arbitrators

(“CIArb”). Yet before the arbitral panel had been selected, much less convened or given the opportunity to

rule on the scope of discovery, Servotronics filed an ex

parte application for voluminous document discovery

from Boeing in the Northern District of Illinois.

Section 1782(a) does not authorize such a request

by participants in a private arbitration. Instead, it authorizes district courts to order discovery “for use in a

proceeding in a foreign or international tribunal.” The

phrase “foreign or international tribunal” refers to a

body that derives its authority from a governmental

grant or an international agreement—that is, from

the exercise of sovereign authority by one or more

states. As the Seventh Circuit correctly recognized,

“[plrivate foreign arbitrations,” whose adjudicatory

authority stems from a contractual agreement between the parties, “are not included.” J.A. 90a. In so

holding, the Seventh Circuit joined the Second and

Fifth Circuits, which had reached the same conclusion

more than two decades earlier. See Nat? Broad. Co. v.

Bear Stearns & Co., 165 F.3d 184 (2d Cir. 1999); Republic of Kazakhstan v. Biedermann Int7T, 168 F.3d

880 (5th Cir. 1999).

3

An arbitration panel was convened, and the arbitration between Servotronics and Rolls Royce proceeded. Servotronics sought to delay the issuance of

an award to give the Section 1782 discovery proceedings in the United States time to resolve. But the arbitrators denied that request, so an award is forthcoming. Given that Servotronics likely would be unable to use any documents it did obtain in the arbitration, the Court should dismiss this case as moot.

In the alternative, the Court should affirm the ruling below. The ordinary meaning of “foreign or international tribunal” in 1964—the year Congress incorporated that phrase into Section 1782(a)—extended

solely to entities created through the exercise of sovereign power, tribunals with which the United States

had significant experience at the time. The phrase did

not include private, contract-based arbitrations—

which live and die by the consent of the parties rather

than by the will of sovereign states, and which were

relatively rare in the early 1960s (particularly in the

United States). The phrase’s ordinary meaning is confirmed by all other relevant indicia of statutory interpretation, including statutory context and history,

legislative history, and the imperative of avoiding a

conflict with the Federal Arbitration Act, 9 U.S.C. § 1

et seq. Servotronics’s arguments to the contrary are

not persuasive and should be rejected.

STATEMENT

1. This case stems from a fire that occurred during

ground testing of an aircraft engine in January 2016.

J.A. 79a—80a. Rolls-Royce manufactured the engine,

which was installed on a Boeing aircraft. /d. at 79a.

Boeing sought compensation for the resulting damage

from Rolls-Royce, which settled the claim with participation from its insurers. /d. at 80a.

4

Servotronics had supplied an engine component to

Rolls-Royce. J.A. 80a. As Servotronics acknowledged

below, “due to a manufacturing error [in the component], an unwanted wafer of metal dislodged in the

[component].” Jd. at 21a. That defect caused the tail

pipe fire in the engine. Jbid.

Rolls-Royce sought reimbursement from Servotronics for the amounts it had paid to Boeing; Servotronics refused to pay. J.A. 80a. The contract between

Servotronics and Rolls-Royce stated that, if they could

not resolve a dispute by negotiation or mediation,

“(t]he dispute shall be referred to and finally resolved

by arbitration” in the United Kingdom “under the

rules of the Chartered Institute of Arbitrators.” Jd.

at 20a, 80a. Rolls-Royce accordingly initiated arbitration. Id. at 80a.

2. On October 26, 2018, before the arbitral panel

had been appointed, Servotronics filed an ex parte application in the Northern District of Illinois, seeking

permission to serve broad document discovery on Boeing under Section 1782. J.A. 24a, 80a. Servotronics’s

proposed discovery requests sought 22 different categories of documents that ranged from the purchase

agreement and delivery documents to “[a]ll documents and communications between Boeing” and a

third-party airline customer relating to the fire, the

investigation, and any monetary payments between

Boeing and the airline. /d. at 40a—43a. The document

requests were in substance identical to those that Servotronics later made in the arbitration. See Rolls-

Royce Rule 28(j) Ltr. 1, Servotronics, Inc. v. Boeing

Co., No. 19-1847 (7th Cir. May 8, 2020) (“Rule 28()

Ltr.”).

That same day, Servotronics also applied ex parte

for three deposition subpoenas—directed to current

5

and former Boeing employees—in the District of

South Carolina. J.A. 71a.

Servotronics did not serve the Section 1782 applications on Boeing or Rolls-Royce. The Northern District of Illinois initially granted the Illinois application

without comment in a November 19, 2018 minute order. J.A. 69a. Rolls-Royce intervened and moved to

quash the subpoena; Boeing separately intervened

and submitted a response supporting Rolls-Royce’s

motion to quash. Jbid.

On April 22, 2019, the Illinois district court determined that “the London Arbitration for which Servotronics seeks discovery is a private arbitral proceeding

that does not qualify as a ‘foreign or international tribunal’ under the statute.” J.A. 74a. Accordingly, the

district court “grantled] the motion [to quash], vacateld] [its] previous order, and quash[ed] Servotronics’s subpoena on Boeing.” /d. at 70a. Servotronics

appealed to the Seventh Circuit.

The district court in South Carolina separately denied Servotronics’s application to serve deposition

subpoenas on current and former Boeing employees,

concluding—like the district court in Illinois—that

Section 1782(a) “does not apply to private international arbitrations.” In re Servotronics, Inc., No. 2:18-

mc-00364-DCN, 2018 WL 5810109, at *2 (D.S.C. Nov.

6, 2018), rev'd and remanded sub nom. Servotronics,

Ine. v. Boeing Co., 954 F.3d 209 (4th Cir. 2020). Servotronics appealed that decision to the Fourth Circuit.

3. The Fourth Circuit issued its opinion on March

30, 2020, reversing the South Carolina district court

and concluding that “the UK arbitral panel charged

with resolving the dispute between Servotronics and

Rolls-Royce” is a “foreign or international tribunal”

under Section 1782(a). Servotronics, Inc. v. Boeing

6

Co., 954 F.3d 209, 214 (4th Cir. 2020). The Fourth Circuit did not hold that all private foreign arbitrations

are necessarily “foreign or international tribunal|s],”

but rather that arbitration in the United Kingdom is

“a product of ‘government-conferred authority” given

“governmental regulation and oversight” of the arbitration process. /bid.

The Seventh Circuit, by contrast, affirmed the []-

linois district court’s order quashing the subpoena on

September 22, 2020. Relying on dictionary definitions,

as well as statutory context and history, the Seventh

Circuit concluded that “a ‘foreign or international tribunal’ within the meaning of [Section] 1782(a) is a

state-sponsored, public, or quasi-governmental tribunal.” J.A. at 92a. The court also noted that this interpretation of the statute avoided a “serious conflict”

with the Federal Arbitration Act (“FAA”), which

strictly limits the scope of third-party discovery, and

was consistent with the legislative history and this

Court’s decision in Jnte/ Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004). J.A. 90a—93a.

Based on this interpretation, the Seventh Circuit

held that Servotronics could not use Section 1782 to

obtain discovery for use in the arbitration because

such a private, contract-based arbitration is not a

“state-sponsored, public, or quasi-governmental” entity. J.A. 92a. And, the court explained, the Fourth

Circuit was “mistaken” in its analysis because “[t]he

source of a private arbitral panel’s adjudicative authority is found in the parties’ contract, not a governmental grant of power.” J.A. 85a n.2.

4, Separately, the arbitral panel was constituted,

and Servotronics sought discovery under the CIArb’s

rules. Servotronics sought a number of documents encompassed by its Section 1782 subpoena from Rolls-

7

Royce, which exercised its contractual right to obtain

documents from Boeing “that are reasonably necessary’ for “an indemnity or subrogation claim.” Rule

28G) Letter Ex. A, at 2-3. The panel acknowledged its

authority to order Rolls-Royce to demand that Boeing

produce relevant documents, and Servotronics has obtained through this contractual mechanism all documents that the arbitral panel determined were necessary “for the fair resolution of this arbitration.” Jd. at

4. The remaining categories of documents—those still

at issue in this case—are those that the arbitral panel

concluded were “excessively broad,” “insufficiently focused,” “not necessary for the fair disposal of the arbitration,” or “not directed to relevant documents.” Jd.

at 3-6.

The merits hearing in the arbitration took place

from May 10 to May 21, 2021. The parties filed posthearing briefs on June 4, 2021. Servotronics separately asked to delay the award until December 31,

2021 so that it could submit evidence from the U.S.

proceedings, and the panel denied the request. Nothing suggests that the panel would admit or consider

any discovery Servotronics might obtain through Section 1782.

SUMMARY OF ARGUMENT

I. The Court should dismiss the case as moot.

A. Servotronics would no longer appear to have a

legally cognizable interest in the outcome of this case.

Section 1782 only permits discovery when the documents will be available “for use in a proceeding.” 28

U.S.C. § 1782(a) (emphasis added). The arbitration

hearing in Servotronics’s dispute with Rolls-Royce

ended on May 21, 2021, and the parties submitted

post-hearing briefs shortly thereafter. The panel is expected to issue its award in the next several months

8

and, even if the award were delayed, there is no indication that the panel would consider new evidence at

this late stage in the proceedings. Even if Servotronics

were successful in this appeal, any documents produced likely could not be “use[d]” in the arbitration.

B. While Servotronics did not address mootness in

its opening brief, it may argue on reply that its claims

are “capable of repetition, yet evading review.” But

there is no “reasonable expectation” that Servotronics,

a New York-based company, will again seek to use

Section 1782 to obtain third-party discovery for use in

an arbitration involving Boeing or Rolls-Royce, as

would be required for this narrow exception to apply.

Moreover, a Section 1782 application seeking discovery for use in a private, contract-based arbitration

can be fully litigated in a different case that does not

present similar mootness concerns. Foreign or international arbitrations, particularly complex commercial disputes, routinely last long enough to permit the

final resolution of a Section 1782 request. Here, Servotronics made its original discovery request in October 2018, more than two-and-a-half years before the

arbitration hearing, which should be ample time for

full appellate review in the typical case. Servotronics

also had the option of seeking expedited proceedings

at multiple stages of this case, yet never once attempted to do so.

IT. Text, context, purpose, and history all demonstrate that Section 1782(a) does not permit discovery

for use in a private, contract-based arbitration.

A. The phrase “foreign or international tribunal”

in Section 1782(a) excludes private, contract-based arbitrations. In 1964, when Section 1782(a) was

amended to include that phrase, it most naturally

meant an entity exercising authority conferred by a

9

government or a group of sovereign states. It did not

include private, contract-based arbitrations, which

derive their authority from the consent of private parties. The ordinary meaning of “foreign or international

tribunal” is confirmed by the etymology and contemporaneous dictionary definitions of “tribunal,” as well

as international practice and context in the early

1960s.

B. Statutory context and history confirm the ordinary meaning of the phrase “foreign or international

tribunal.” Other uses of that phrase in the 1964

amendment, and other portions of Section 1782(a) itself, make clear that it refers exclusively to bodies authorized by a single government or by an international

agreement—that is, state-sponsored institutions. The

statutory history also shows that Congress amended

Section 1782(a) to improve judicial assistance and cooperation with foreign countries, not with private parties or ad hoc arbitral panels created by private parties, which cannot offer reciprocity to U.S. courts. And

the meaning of “foreign or international tribunal” is

further informed by the two predecessor statutes that

Section 1782 replaced, both of which addressed only

state-sponsored bodies.

C. Legislative history provides further support.

The Senate and House reports show that the phrase

“foreign or international tribunal” refers exclusively

to a governmental or state-sponsored body. Congress

substituted the word “tribunal” for “court” so that the

statute would apply to “administrative and quasi-judicial proceedings” abroad. By contrast, nothing in the

legislative history suggests that Congress intended to

extend Section 1782(a) to private, contract-based arbitrations.

10

D. A contrary interpretation of “foreign or international tribunal” would create a serious conflict with

the FAA. Construing Section 1782(a) to permit discovery for use in private, contract-based arbitrations

would allow private parties to obtain much broader

discovery under that regime than under the FAA, and

it would displace the FAA in those “foreign or international” arbitrations that are subject to both statutes.

E. The broad interpretation of Section 1782(a) advanced by Servotronics is unpersuasive and would result in significant and adverse consequences.

1. Servotronics relies heavily on dislocated and

passing legal references to arbitration panels as “tribunals.” But these are not relevant to whether, in

1964, the phrase “foreign or international tribunal”

would have been understood to include private, contract-based arbitrations, let alone whether Congress

intended to adopt that understanding when it revised

Section 1782. Rather, the most persuasive indicia of

statutory meaning dictate the conclusion that it did

not.

2. Servotronics is incorrect that Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004)—or a

footnote from a law review article that the Court cited

in a parenthetical—resolves the issue presented here.

Intel involved a state-sponsored arm of the European

Communities, not a private, contract-based arbitral

panel; the Court thus did not address whether a private, contract-based arbitration falls within the scope

of Section 1782(a). The law review footnote Servotronics claims as dispositive says only that “[t]he term

‘tribunal’. . . includes investigating magistrates, administrative and arbitral tribunals, and quasi-judicial

agencies, as well as conventional civil, commercial,

criminal, and administrative courts.” Jd. at 258. This

11

says nothing about whether the “arbitral tribunals”

addressed in the footnote include those empowered by

private contract. And the fact that all other entities

included in the list are state-sponsored strongly suggests that the referenced “arbitral tribunals” are as

well.

3. The adverse consequences of Servotronics’s interpretation of Section 1782(a) would be significant.

Private, contract-based arbitrations are now a common part of the landscape of international commerce.

Commercial parties regularly incorporate arbitration

clauses into their transnational contracts, and numerous associations—of widely varying sophistication

and reputation—administer commercial arbitrations

worldwide. Many parties choose to enter into arbitration clauses precisely because the arbitration process

is more efficient and streamlined than litigation. But

of course, litigants will seek any potential advantage

they might obtain—including the use of Section

1782—once embroiled in a dispute. The adoption of

Servotronics’s interpretation of Section 1782(a) would

thus force district courts to adjudicate discovery disputes flowing from numerous private, contract-based

international arbitrations, simply because one party

finds it advantageous to target a third party found in

the United States. That “Americanization” of international arbitration is not welcomed by other sovereign

states, introduces a structural unfairness to the arbitration process, and is not remotely an objective that

Congress would have sought—or could have contemplated—in 1964.

ARGUMENT

The arbitration hearing for which Servotronics requested discovery has concluded, and the arbitration

panel has refused to delay its issuance of an award to

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await the results of these Section 1782 proceedings.

Section 1782 only permits discovery when the documents will be available “for use in a proceeding,” 28

U.S.C. § 1782 (emphasis added), and no such use will

be possible here. Accordingly, the Court should dismiss this case as moot.

Alternatively, the Court should affirm the judgment below. The ordinary meaning of “foreign or international tribunal” in 1964—the year Congress incorporated that phrase into Section 1782(a)—extended solely to entities exercising sovereign authority. The phrase did not cover contract-based arbitrations between private parties.

I. THIS COURT LACKS JURISDICTION BECAUSE

THE CASE IS Moot.

This case is almost certainly moot because it appears that Servotronics no longer has a legally cognizable interest in the outcome of this appeal.

A. THERE IS No LONGER A “CASE” OR

“CONTROVERSY.”

Under Article III of the Constitution, the “judicial

Power” extends only to “Cases” and “Controversies.”

U.S. Const. art. III, § 2, cl. 1. “A case becomes moot—

and therefore no longer a ‘Case’ or ‘Controversy for

purposes of Article I[]—‘when the issues presented

are no longer “live” or the parties lack a legally cognizable interest in the outcome.” Already, LIC v.

Nike, Inc., 568 U.S. 85, 91 (2013) (quoting Murphy v.

Hunt, 455 U.S. 478, 481 (1982) (per curiam)).

Mootness can arise at any stage of the litigation,

including on appeal. City News & Novelty, Inc. v. City

of Waukesha, 531 U.S. 278, 282 (2001). This case has

become moot because Servotronics no longer has a legally cognizable interest in the documents requested

13

through Section 1782(a)—and therefore in the case itself.

The arbitration hearing ended on May 21, 2021,

and the parties filed post-hearing briefs on June 4,

2021. Separately, the panel denied Servotronics’s request to delay the award until December 31, 2021, and

it is expected to issue an award within the next several months. A decision by the arbitral panel would

plainly moot this case because the documents sought

by Servotronics could not even conceivably be “useld]”

(28 U.S.C. § 1782(a)) in the then-concluded arbitration.

Even at present, moreover, the case is still almost

certainly moot. The arbitral hearing and post-hearing

briefing are over. The panel has already denied Servotronics’s request to delay the hearing so that it could

submit evidence from the U.S. proceedings. Nothing

suggests that the panel would change course and consider any discovery Servotronics eventually obtained

using Section 1782. Any “victory” by Servotronics in

these proceedings would be hollow, because Servotronics would obtain documents that it likely could not

use in the arbitration and that would not affect its

“particular legal rights.” A/ready, LLC, 568 U.S. at 91

(quoting A/varezv. Smith, 558 U.S. 87, 93 (2009)); see

also Weinstein v. Bradford, 423 U.S. 147, 148 (1975)

(per curiam) (respondent released from supervision

had no interest in petitioner’s procedures for granting

parole). Under these circumstances, the courts of appeals have repeatedly recognized that a request for

discovery under Section 1782(a) is moot. See Jn re

Ishthara Chem. Co., 251 F.3d 120, 125-26 (2d Cir.

2001) (request for Section 1782 discovery moot because evidentiary hearing had already occurred);

Comision Ejecutiva Hidroelectrica del Rio Lempa v.

14

Nejapa Power Co., 341 F. App’x 821, 827 (3d Cir. 2009)

(request for Section 1782(a) discovery moot following

conclusion of arbitration hearing).

B. THE NARROW EXCEPTION FOR CLAIMS

THAT ARE “CAPABLE OF REPETITION YET

EVADING REVIEW” IS INAPPLICABLE HERE.

Servotronics ignores mootness in its opening brief,

but might invoke the exception to the mootness doctrine for claims that are “capable of repetition, yet

evading review” on reply. United States v. Sanchez-

Gomez, 188 S. Ct. 1532, 1540 (2018) (quoting Kingdomware Techs., Inc. v. United States, 136 S. Ct.

1969, 1976 (2016)). This exception applies “only in exceptional situations,” Aingdomware, 136 S.Ct. at

1976 (quoting Spencer v. Kemna, 523 U.S. 1, 17

(1998)), where (1) “there is a reasonable expectation

that the same complaining party will be subjected to

the same action again,” and (2) “the challenged action

is in its duration too short to be fully litigated prior to

cessation or expiration.” Sanchez-Gomez, 138 S. Ct. at

1540 (quoting Turnerv. Rogers, 564 U.S. 431, 439-40

(2011)). Neither of these preconditions is satisfied

here.

First, Servotronics cannot demonstrate that “the

same legal issue in this case is likely to recur in future

controversies between the same parties.” Aingdomware, 136 S. Ct. at 1976; see Murphy v. Hunt, 455

U.S. 478, 482-83 (1982). Servotronics—a New York—

based company—cannot plausibly assert it is likely to

be involved in another Section 1782 dispute involving

private arbitration overseas, let alone with either Boeing or Rolls-Royce.

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