The case of the day, Republic of Ecuador v. Bjorkman (D. Colo. 2011), is the latest judicial assistance case arising out of the Lago Agrio litigation. In this installment, Ecuador sought issuance of a subpoena to Bjorn Bjorkman, an environmental expert who wrote a report for Chevron for use in the BIT arbitration. All our prior Lago Agrio coverage is here.
The case is pretty routine. The one point that I want to call out is Ecuador’s status as an “interested person” in the BIT arbitration. The statute provides that an “interested person” can seek leave to take discovery from a “person” in the United States. Of course, Ecuador is a party to the arbitration. But when a sovereign state is the target of discovery rather than the party seeking discovery, the state is not a “person” for purposes of the 28 U.S.C. § 1782. In Al Fayed v. CIA, 229 F.3d 272 (D.C. Cir. 2000), where Mohammed Al Fayed sought documents from the CIA in aid of his appeal of a French decision to refuse to bring criminal charges in the death of his son and the Princess of Wales, the court held that the United States government was not a “person” for purposes of the statute:
More generally, the Court has repeatedly held that the word “person” in a statute does not include a sovereign government absent affirmative evidence of such an inclusory intent.
And the rule applies even when the sovereign is a plaintiff seeking relief rather than a defendant or respondent asserting immunity from a court’s jurisdiction:
In any event, the Supreme Court applies the constructional principle against finding “person” to include a sovereign even in the absence of sovereign immunity or comity concerns. It did so, for example, in Breard v. Greene, 523 U.S. 371, 378 (1998), holding that Paraguay was not a “person” entitled to sue under 42 U.S.C. § 1983, and in United States v. Cooper Corp., 312 U.S. at 604-05, holding that the United States was not a “person” entitled to bring treble damage actions under § 7 of the Sherman Act.
So if Ecuador would not be deemed a “person” that could be the target of a subpoena issued under § 1782, why should it be deemed an “interested person” that could seek issuance of a subpoena under the statute? “[I]dentical words and phrases within the same statute should normally be given the same meaning.” FCC v. AT&T Inc., 131 S.Ct. 1177, 1185 (2011).
It may be that this is the reason Ecuador named its attorney general as one of the applicants for judicial assistance; in a footnote to their brief, Ecuador’s lawyers wrote:
A government official empowered to represent the state in the relevant foreign proceeding is an “interested person” under Section 1782. In re Application of the Republic of Ecuador, No. 10-MC-80225 CRB (EMC), 2010 WL 4973492, at *5; In re Letter of Request From Crown Prosecution Serv., 870 F.2d 686, 690 (D.C. Cir. 1989) (“A foreign legal affairs ministry, attorney general, or other prosecutor, courts have repeatedly held, fits squarely within the section 1782 ‘interested person’ category.”); Young v. United States Dep’t of Justice, No. 87 Civ. 8307 (JFK), 1988 WL 131302, at *6-7 (S.D.N.Y. Nov. 28, 1988) (finding the Attorney General of Bermuda was an interested person because he had a reasonable interest in obtaining the discovery and was empowered by Bermuda’s law to represent the state in the foreign proceeding at issue); In re Request for Assistance from Ministry of Legal Affairs of Trinidad and Tobago, 648 F. Supp. 464, 466 (S.D.Fla. 1986) (finding that the Attorney General and Minister of Legal Affairs of the Republic of Trinidad and Tobago qualified as an interested person).
If this is what the lawyers had in mind, then I say “good catch, Winston & Strawn!”