Cert. Watch: ZF Automotive v. Luxshare

I’ve previously noted ZF Automotive v. Luxshare, the latest petition for certiorari seeking a decision from the Supreme Court on whether Section 1782 permits a court to order discovery in aid of a private foreign arbitration. In the district court, Luxshare obtained a discovery order under Section 1782, and ZF moved unsuccessfully to quash the subpoenas. While the district court refused to stay its order pending an appeal, it did issue a stay to allow ZF to seek a stay from the Sixth Circuit on appeal. ZF appealed and moved for a stay. It also petitioned the Supreme Court for a writ of certiorari before judgment. Why would ZF take this extraordinary step? Because these cases have a tendency to become moot before the Supreme Court can review them. ZF is asking the court to take its case as a substitute for Servotronics, the case that was dismissed by agreement, likely because of mootness issues, at the beginning of this term.

The Sixth Circuit denied the application for a stay, and therefore, ZF applied to Justice Kavanaugh, the circuit justice, for a stay. Justice Kavanaugh referred the application to the Court, which yesterday granted the application. The upshot is that the discovery order is stayed while court considers whether to grant the petition for cert.

It’s possible to read too much into such decisions, but it’s possible that the stay indicates a likelihood that the Court will grant cert. Time will tell.

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