Our recent posting (here) discussed a case where discretion was exercised to deny Section 1782 discovery in international litigation despite the applicant’s compliance with the statutory requisites.   Another route to denial can be seen in  Application of Inversionesy Gasolinera Petroleos Valenzuela, Applicants, and Exxon Mobil Corp., a Non-Party Witness, Respondent, Case No. 08-20378 (S.D. Fla. Jan. 2011).

Inversionesy analyzed claims for § 1782 discovery in aid of criminal proceedings against an Exxon subsidiary (Esso) in Honduras.  Applicants here alleged that they had filed criminal charges against subsidiary Esso and others relating to the sale of fuel and other oil derivatives in Honduras.

The District Court was faced with a claim by Exxon that the requests were a fishing expedition intended to be “a retributive measure in response to Esso’s decision to terminate a contractual relationship between” Applicants and Esso.  The District Court first went through the statutory criteria for granting § 1782 relief, which this Court numbered as four (sometimes numbered as three):

(1) the person from whom discovery is sought must reside or be found in the district of the district court ruling on the application for assistance; (2) the request must seek evidence which is either the “testimony or statement” of a person or the production of “a document or other thing;” (3) the evidence must be “for use in a proceeding in a foreign or international tribunal;” and (4) the request must be made by “an interested person”. 

The District Court then observed that, based on the Supreme Court’s decision in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), four additional factors could be considered in the exercise of the discretion given to the courts by Congress in enacting § 1782.  These factors have been variously but similarly described:

First, in Intel, the Court counseled that it was appropriate to consider whether the person from whom discovery is sought is a participant in the foreign proceeding, because the need for judicial assistance may be reduced in instances where “a foreign tribunal [with] jurisdiction over those appearing before it . . . can itself order them to produce evidence.” Id. at 264. Second, “a court presented with a § 1782(a) request may take into account the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance.” Id. Third, “a district court could consider whether the § 1782 request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States.” Id. at 265. Fourth, and finally, “unduly intrusive or burdensome requests may be rejected or trimmed”. Id.

Even here the District Court found the proposed discovery appropriate – with one caveat:  Since the discovery was directed to a non-party, the Court determined that the requirements of Fed. R. Civ. P. 45 also governed and needed to be satisfied.  The failure here, and the reason the discovery was not ordered, was that the deponent identified by the Respondent (not the Applicant) resided more than 100 miles from the court house.  The District Court did not suggest that other aspects of Rule 45 would also need to be satisfied; for example, the Court did not say that Federal Rules “relevance” and “burden” showings must be made.  Yet nothing in the Court’s reasoning foreclosed an argument to that effect.