UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

In re APPLICATION OF:

FOOD DELIVERY HOLDING 12 S.A.R.L., Miscellaneous Case No. Applicant, 1:21-mc-0005 (GMH) v.

DEWITTY AND ASSOCIATES CHTD,

Respondent.

MEMORANDUM OPINION AND ORDER

Food Delivery Holding 12 S.a.r.l. (“FDH”) has filed an application for an order pursuant

to

to issue a subpoena for the taking of a deposition and the production of docu-

ments for use in an international arbitration before the Dubai International Finance Centre–London

Court of International Arbitration (“DIFC-LCIA”). The target of the subpoena is a local law firm,

Respondent DeWitty & Associates CHTD (“DeWitty”). FDH has also filed a motion to seal its

memorandum in support of the Section 1782 application and certain exhibits. 1 For the reasons

that follow, the motion to seal is granted; however, the Court defers ruling on the Section 1782

application pending further briefing.

1 The relevant docket entries for the purposes of this Memorandum Opinion and Order are (1) FDH’s application for an order pursuant to Section 1782 (ECF No. 1); (2) FDH’s motion to seal, which includes, under seal, its memorandum in support of the Section 1782 application and its exhibits (ECF No. 2); (3) DeWitty’s response to the Court’s Order to Show Cause why FDH’s applications should not be granted (ECF No. 11); and (4) FDH’s reply to DeWitty’s response (ECF No. 13). I. BACKGROUND

The relevant facts are not extensive. This Section 1782 application seeks discovery from

DeWitty for use in an arbitration in the DIFC-LSIA brought by Ebrahim Al-Jassim against, among

others, FDH. The rules of the DIFC-LSIA require the parties to “undertake as a general principle

to keep confidential . . . all materials in the arbitration created for the purpose of the arbitration

and all other documents produced by another party in the proceedings not otherwise in the public

domain.” ECF No. 2-1 at 27. In support of its Section 1782 application, FDH has filed (under

seal pending the Court’s determination on the motion to seal) a number of documents filed in the

arbitration, the subpoena that it seeks to serve on DeWitty in order to gather evidence for use in

the arbitration, and a supporting memorandum that includes information from those documents.

II. DISCUSSION

A. Motion to Seal

Although there is a general presumption that judicial records will be publicly accessible,

“the right to inspect . . . judicial records is not absolute.” Nixon v. Warner Commc’ns,

, 597–98 (1978). In the D.C. Circuit, a court must weigh the following factors, derived from

the D.C. Circuit’s decision in United States v. Hubbard,

(D.C. Cir. 1980):

(1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings.

Metlife, Inc. v. Fin. Stability Oversight Council,

, 665–66 (D.C. Cir. 2017) (quoting

EEOC v. Nat'l Children's Ctr., Inc.,

(D.C. Cir. 1996)). This analysis leads to

the conclusion that FDH’s motion to seal should be granted. The documents at issue were filed in this case as support for FDH’s application for issuance

of a subpoena. They comprise the memorandum in support of that application, as well as support-

ing documentation, which includes documents filed in the underlying arbitration and communica-

tions regarding prior negotiations between FDH and DeWitty regarding material that is the subject

of the subpoena sought to gather evidence for use in the arbitration. See ECF No. 2-2; ECF No.

2-4 through 2-10. The need for public access to judicial documents is at a low ebb when discovery

materials are at issue. See, e.g., Leucadia, Inc. v. Applied Extrusion Techs., Inc.,

,

164–65 (3d Cir. 1998) (holding that there is no presumptive right to public access to material filed

in connection with discovery motions). Moreover, the rules of the DIFC-LCIA require the parties

to endeavor to keep documents relating to arbitrations before that forum confidential. See ECF

No. 2-1 at 27. Thus, the first factor—the need for public access to the documents—and the sixth

factor—the purpose for which the documents were introduced—weigh in favor of granting the

motion to seal.

The second factor evaluates the extent of previous public access to the documents at issue.

Here, it appears that most of these documents are not now and have not previously been publicly

available (ECF No. 2 at 5), a conclusion buttressed by the fact that, as noted above, the parties to

the arbitration generally warrant that they will keep arbitration materials confidential. One docu-

ment—the proposed subpoena, itself—is admittedly publicly available, but only because DeWitty

filed it publicly in connection with its response to the Court’s Order to Show Cause. ECF No. 11-

1. FDH has asked that that document be sealed. ECF No. 13 at 4. On balance, this factor is

neutral. See, e.g., In re McCormick & Co., No. 15-1825,

, *2 (D.D.C. June 13,

2017) (“If there has been no previous access, this factor is neutral.”). The third through fifth factors ask about the interests of those opposing disclosure. Here,

FDH is a party to an arbitration before the DIFC-LCIA and, as such, is required to endeavor to

keep documents and information from that arbitration confidential. FDH is, therefore, a proper

party to object to disclosure. More, “confidentiality is a paradigmatic aspect of arbitration,” Guy-

den v. Aetna, Inc.,

(2d Cir. 2008), and, as a participant in the arbitration, FDH

has agreed to keep the information in the documents it seeks to seal confidential. Finally, FDH

represents that its “failure to use its best efforts to maintain confidentiality of the documents for

which sealing is sought could be deemed a breach of FDH’s confidentiality obligations in the

arbitration.” ECF No. 2 at 5. Thus, these factors weight in favor of granting the motion.

Additionally, DeWitty has not opposed FDH’s motion to seal. ECF No. 11; ECF No. 13

at 4.

Because five of the six Hubbard factors weigh in favor of sealing these materials and one

factor is neutral, the motion to seal is granted.

B. Section 1782 Application

A two-stage inquiry informs whether a federal court will grant a motion under Section

1782. First, the court must determine whether it can order the requested relief—that is, whether it

has the authority to do so; second, it must decide whether it should order the requested relief—that

is, whether exercising its discretion to do so would further the statue’s “twin aims of ‘providing

efficient assistance to participants in international litigation and encouraging foreign countries by

example to provide similar assistance in our courts.’” Intel Corp. v. Advanced Micro Devices,

Inc.,

(2004) (quoting Advanced Micro Devices, Inc. v. Intel Corp.,

(9th Cir. 2002)). “A district court has the authority to grant an application when . . . (1) the person from

whom discovery is sought resides or is found within the district; (2) the discovery is for use in a

proceeding before a foreign or international tribunal; and (3) the application is made by an inter-

ested person.” In re Veiga,

(D.D.C. 2010) (citing

(a)). The

second step is informed by the following four factors: (1) whether the target of the discovery re-

quest is a participant in the foreign or international proceeding, (2) the nature of the foreign tribunal

and character of its proceedings, (3) whether the application is an attempt to “circumvent foreign

proof-gathering restrictions or other policies,” and (4) whether the request is “unduly intrusive or

burdensome.”

(quoting Intel, 542 U.S. at 264–65). FDH’s application stumbles just out of the

gate, however, because it has not established that the DIFC-LCIA is properly considered a “foreign

or international tribunal.” If it is not, then the application does not meet the requirements of the

statute and the Court may not grant it.

There is currently a Circuit split regarding whether parties to private arbitrations are au-

thorized to utilize Section 1782 to obtain discovery for use in those proceedings. The Second

Circuit has held that they are not, and in doing so, abrogated a decision from the U.S. District

Court for the Southern District of New York holding that a proceeding before the London Court

of International Arbitration was a “foreign or international tribunal” for the purposes of the statute.

See In re Guo,

, 104–108 (2d Cir. 2020), abrogating In re Children’s Inv. Fund Found.

(U.K.),

, 369–70 (S.D.N.Y. 2019). The Seventh Circuit and the Fifth Circuit

agree. See Servotronics, Inc. v. Rolls-Royce PLC,

(7th Cir. 2020) (“[W]e join

the Second and Fifth Circuits in concluding that § 1782(a) does not authorize the district courts to

compel discovery for use in private foreign arbitrations.”); Republic of Kazakhstan v. Biedermann

Int’l,

(5th Cir. 1999); see also In re Storag Etzel GmbH, No. 19-mc-209,

, at *3 (S.D. Fla. Apr. 3, 2020) (“In conclusion, although not without doubt, I find

that the term ‘tribunal’ in § 1782(a) does not encompass private arbitral bodies. Accordingly,

Storag has failed to meet the statutory requirements of § 1782(a) and I will deny its application.”).

The Fourth and Sixth Circuits disagree. See generally Servotronics, Inc. v. Boeing Co.,

(4th Cir. 2020); In re Application to Obtain Discovery for use in Foreign Proceedings,

(6th Cir. 2019) (holding the a DIFC-LCIA panel constituted a foreign or international

tribunal). The D.C. Circuit does not appear to have weighed in on this issue, and FDH fails to

address this question in any depth. Indeed, it addresses the “international or foreign tribunal”

requirement in a single sentence that fails to acknowledge that federal courts have come to different

conclusions as to whether a private arbitral panel fits within the statue’s definition. ECF No. 2-2

at 13–14. Thus, FDH has not overcome its initial hurdle of showing that the Court is authorized

to grant the relief it seeks. Rather than denying the application outright, however, the Court will

allow the parties to submit supplemental briefing on this issue.

III. ORDER

For the foregoing reasons, it is hereby

ORDERED that FDH’s motion to seal (ECF No. 2) is GRANTED. It is further

ORDERED that the Clerk of Court shall also seal the documents necessary to ensure that

the exhibit filed at ECF No. 11-1 is not available to the public. It is further

ORDERED that, on or before March 22, 2021, FDH shall either (1) file a supplemental

memorandum addressing the question of whether

permits this Court to order

discovery for use in the underlying arbitration and whether doing so here would further the “twin

aims of ‘providing efficient assistance to participants in international litigation and encouraging

foreign countries by example to provide similar assistance in our courts,’” Intel Corp.,

(emphasis added); see also In re Veiga,

(“In engaging th[e] analysis [under

Section 1782], courts should look to the statute’s twin aims, i.e., to provide fair and efficient as-

sistance to participants in international litigation and to encourage other countries to provide sim-

ilar assistance” (citing In re Application of Euromepa, S.A.,

, 1097 (2d Cir. 1995)))

or (2) file a notice withdrawing its application under Section 1782. It is further

ORDERED that DeWitty shall file any response to that supplemental memorandum on or

before March 29, 2021.

SO ORDERED. Digitally signed by G. Michael Harvey Date: 2021.03.08 14:25:25 -05'00' Date: March 8, 2021 ___________________________________ G. MICHAEL HARVEY UNITED STATES MAGISTRATE JUDGE JUDGE