Tag Archives: Discovery

Courts Continue To Show Resistance To Maintaining Under Seal or In Confidence Documents and Information Used in Court Proceedings

We have posted previously on the growing reluctance of certain courts to maintain under seal the rulings of arbitral panels in international disputes (see, for example, here).  That poses challenges to parties trying to decide whether to initiate confirmation, enforcement, or vacatur proceedings.  Once the case is in court, however, there is no assurance that … Continue Reading

District Courts Show Reluctance To Precluding Non-U.S. Expert or Consultant Access To Even Highly Confidential Material Subject to U.S. Court Imposed Orders of Confidentiality/Protective Orders

In complex commercial litigation generally, the questions typically arise concerning who can review or have access to the confidential documents or data of the adversary.  In international litigation, those questions also include “where” parties can have such access.  If a non-U.S. person or entity breaches a confidentiality order entered by a U.S. court, where can … Continue Reading

District Court Rejected Reconsideration of Discovery Ruling Requiring Disclosure of Flight Data In Connection with Plan Columbia

Venancio Aguasanta Arias, et al. v. Dyncorp, et al., Civil Action No. 01-1908 (D.D.C. 2012), denies a motion for reconsideration of a discovery order in an international litigation.   The underlying case involves allegations relating to “Plan Columbia”, where the government allegedly hired Dyncorp to assist “in illicit drug crop eradication by spraying fumigants from airplanes … Continue Reading

Ecuador Granted Section 1782 Discovery Over Chevron’s Objection

In re Republic of Ecuador and Dr. Diego Garcia Carrion’s Application Under 28 U.S.C. Sec. 1782, 2:11-mc-00052 (GSA) (E.D. Cal. 2011), is an application the Ecuador among others to take the testimony in the U.S. of one Douglas M. Mackay.  Chevron moved to stay the discovery application.   The use to be made of the discovery … Continue Reading

Section 1782 Discovery Ordered Against Chevron’s Environmental Expert for Use in UNCITRAL Arbitration Relating to Ecuador

A decision from a Magistrate Judge in Colorado includes some useful learning on international practice under 28 U.S.C. Section 1782.  Republic of Ecuador, et al. v. Bjorkam (Chevron), Civil Action No. 11-cv-01470-WYD-MEH (D. Colo. Aug. 2011). The underlying international litigation is related to the Chevron litigation we have posted on many times.  This proceeding relates … Continue Reading

Having Granted Section 1782 Discovery Request Ex Parte, Court Now Concludes that Intervenors Asserting Objections Must, But Do Not, Satisfy the Heightened Rule 60(b) Standards for Vacating the Discovery Order

In re Application of Dr. Alfonso Henrique Alves Braga, in his capacity as Judicial Administrator of Petroforte Brasilerio de Petroleo Ltda, et al. pursuant to 28 U.S.C. § 1782 For Judicial Assistance in Obtaining Evidence Located in the Southern District of Florida, Case No. 10-23973-MC-King/Goodman (S.D.N.Y Mar. 2011), deserves another brief look, since it addresses … Continue Reading

S.D.N.Y. Upholds Discovery of Non-U.S. Bank Branches, but Only after Hague Convention Procedures Are Utilized

Tiffany (NJ) LLC, et al. v. QI Andrew, et al., 10 Civ. 9471 (S.D.N.Y. July 2011)(Mag. J. Peck), addresses international discovery issues and can serve as a refresher of several of the areas that arise frequently in international litigation. Plaintiffs moved for an order compelling document production from three Chinese banks (the Bank of China, … Continue Reading

Second Circuit Affirms Enforcement of Arbitral Award; Reaffirms “Manifest Disregard” Legal Availability, But Inapplicability

STMicroelectronics, N.V. (ST) v. Credit Suisse Securities (USA) LLC (CS), Dkt. No. 10-3847-cv (2d Cir. June 2011), affirms in major part the District Court’s confirmation of an arbitral award against CS. The arbitration arose from alleged and apparently proven improprieties in trading auction rate securities. The award, issued unanimously, undid the trades; ST would return … Continue Reading

Seventh Circuit Follows Strict Line of Authority on Attaching Non-U.S. Sovereign Assets To Satisfy Judgment

Jenny Rubin, et al. v. The Islamic Republic of Iran, et al., No. 08-2805 (7th Cir. 29 Mar. 2011), corrected decision (7th Cir. 1 Apr. 2011), is an appeal in the United States Court of Appeals for the Seventh Circuit by Iran involving two distinct orders issued in connection with the plaintiffs’ efforts to collect on a judgment … Continue Reading

Third Circuit Rejects Chevron’s Broad Section 1782 Disclosure Request: Public Disclosure of Nonprivileged Communications Cannot Waive Privilege for Privileged Communications

The most recent installment of the U.S. proceedings involving Chevron Corp., the $8.646 billion judgment against it for environmental damage rendered in Ecuador, and Chevron’s efforts to stay or avoid that judgment by proceedings here in the U.S. takes us again to the Third Circuit, In re Application of Chevron Corp., Nos. 10-4699, 11-1099 (3d … Continue Reading

Seventh Circuit Joins Third Circuit in Reversing Refusal of District Courts To Permit Discovery Under Section 1782; Possibly Splits With the Second Circuit

We previously discussed the Third Circuit’s decision taking the rare step of reversing on abuse of discretion grounds the District Court’s refusal to permit discoveryunder 28 U.S.C. sec. 1782 and permitting Heraeus Kulzer GBbH discovery.  A related case, recently decided by the Seventh Circuit, Applications of Heraeus Kulzer, GMbH for Orders Compelling Discovery for use in … Continue Reading

Denial of Section 1782 Discovery Based on District Court’s Discretion Highlights Differences in Judicial Approaches

In re Application of Caratube, 10-0285 (D.D.C. 2010) [730 F.Supp. 2d 101] (In re Caratube op on Reconsideration) merits a short discussion in light of our posting on the Third Circuit’s  decision concerning Chevron’s § 1782 discovery efforts.  Caratube involved a § 1782 petition by the oil company directed at persons and entities in the U.S., … Continue Reading

Third Circuit Weighs In Chevron Ecuador Matter, Permitting § 1782 Discovery But Reversing on District Court’s Invocation of Crime-Fraud Exception

In Re Chevron Corp., No. 10-2815 (3d Cir. Feb. 2011), involves a review by the United States Court of Appeals for the Third Circuit of a District Court’s order granting Chevron discovery under 28 U.S.C. § 1782 (see the discussion the use of U.S. discovery in international proceedings in our e-book, International Practice: Topics and … Continue Reading

Defendant in SEC Action Not Entitled to Ask for Order Directing the SEC To Seek Documents from non-U.S. Entity under Multilateral Securities Enforcement Understandings

SEC v. Tourre, 10 Civ. 3229 (S.D.N.Y. Feb. 2011), addressed an interesting attempt by a private party to obtain discovery help from non-U.S. governmental entities in the context of international litigation. Fabrice Tourre is a defendant in an SEC action pending in U.S. federal court.  He sought 1) issuance by the U.S. federal court of … Continue Reading

D.C. Circuit Affirms District Court Authority To Sanction Non-U.S. Sovereign For Failure To Make Ordered Discovery – Enforcement Dispute Deferred

FG Hemisphere Associates, LLC v. Democratic Republic of Congo (DRC), et al., No. 10-7040 (D.C. Cir. March 2011), addresses whether a District Court has authority to sanction a non-U.S. Sovereign for willful failures to comply with discovery orders made in connection with enforcement proceedings. Although the Court of Appeals states that it is the first court … Continue Reading

The Risks that Technology Poses To Discovery in International Litigation

With the constant advance of technology affecting businesses worldwide, issues having particular impact to international practice deserve the attention of clients and their legal advisors.  Recent cases act as the springboard to consider two of those here: First, when businesses have multiple locations that require coordination and in fact achieve a degree of consolidation of the … Continue Reading

Circuit Court Reverses District Court’s Refusal To Grant Section 1782 Discovery — Third in Our Series

Our last two postings have analyzed recent decisions rejecting discovery requests made under 28 U.S.C. § 1782 (here and here).  We take up one last example in this series – where a Federal Circuit Court of Appeals took the rare step of reversing as an abuse of discretion the District Court’s the denial of a … Continue Reading

Why Another District Court Denied Section 1782 Discovery in Aid of International Litigation

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). … Continue Reading

You Mean There May Be a Limit to 28 U.S.C. § 1782 Discover After All? Recent Judicial Decisions Show Meets and Bounds of Assisting Non-U.S. Proceedings with U.S. Discovery

Our recent posting (here) described the Second Cirtcuit’s application of 28 U.S.C. § 1782’s broad grant of discovery in aid of non-U.S. proceedings.  That is not first case of its kind.  One might reasonably ask whether there are any real limits on the use of U.S. discovery proceedings to aid a litigant’s pursuit or defense … Continue Reading

Second Circuit Affirms Discovery Order Under Section 1782, this Time Against a U.S. Journalist

In the next installment in the ongoing international litigation involving Chevron and its environmental litigation in Ecuador (see our prior discussion here), the Second Circuit again addressed discovery in the context of a request under 28 U.S.C. sec. 1782.  Chevron Corp., et al. v. Berlinger, Crude Productions, LLC, et al., Dkt. No. 10-1918-cv(L) (2d Cir. Jan. … Continue Reading

Another Court Rejects French Blocking Statute’s Applicability From Requiring Hague Convention Discovery To Displace Discovery Under the Federal Rules of Civil Procedure

MeadWestvaco Corp. v. Rexam PLC, 1:10cv511 (E.D. Va. Dec. 2010), addressed whether the existence of the French Blocking Statute should compel or persuade the District Court to require the discovering plaintiff to seek discovery in France pursuant to the Hague Convention rather than under the Federal Rules of Civil Procedure. The District Court was unpersuaded, … Continue Reading

Sanctions Granted Against Non-U.S. Sovereign (Grenada) for Conduct in Post-Judgment Discovery

Export-Import Bank of the Republic of China v. Grenada, 06 Civ. 2469 (S.D.N.Y. 29 Dec. 2010), addresses the relatively rare circumstance in international litigation — a successful attempt to locate assets in the U.S. to satisfy a judgment against a non-U.S. sovereign.  Export-Import Bank of China sought to satisfy a $25 million judgment against Grenada.  … Continue Reading

Ninth Circuit Enforces U.S. Grand Jury Subpeona on Non-U.S. Documents Held by U.S. Law Firms

International litigation typically entails at least some discovery, often the production of documents.  See our discussion of the Topic 7 relating to discovery in international litigation in our e-book, International Practice: Topics and Trends.  In international antitrust litigation, civil suits consolidated in the Northern District of California resulted in the production of documents in the U.S.  The … Continue Reading

Second Circuit Affirms (in Summary Order) District Court Enforcement of Section 1782 Discovery– This Time Against Lawyer for Plaintiffs in the Non-U.S. Proceedings

In another example on the subject of our posting of 20 December 2010 – the effective use of 28 U.S.C. § 1782 to obtain discovery in the U.S. for use in non-U.S. proceedings – let’s briefly examine another of the recent Chevron decisions, this one by Judge Kaplan in the Southern District of New York.  … Continue Reading
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