1. You can search on more than one criterion. So for example, you could search for all cases from the Southern District of New York that involve § 1782. Or you could search for all US state court cases involving the Hague Service Convention. Go ahead—give those two searches a try!
2. You can also select multiple courts or multiple statutory provisions. So for example, you could search for all cases that involve § 1782 from the Southern District of New York or the Seventh Circuit.
3. At the top of the screen, in the menu bar (click on the “Navigation” link if you’re using a mobile device), you’ll see a new menu item called “Index.” It will feature search pages to help you narrow in on what you’re looking for. So far, the only page that’s live is the US State Court index. Give it a try!

As I noted in my last post on this topic, my team of volunteers and I have gotten much of the database coded, but not all. I am going to try to finish up the coding as time permits, and I will let you know when it is done. Until then, you can’t really have any confidence that the search results will capture all Letters Blogatory cases of the day. But I’m getting there!

Original article: More on the New Search Feature. Letters Blogatory © 2013 Theodore J. Folkman and contributors. Some rights reserved.

In 2011, Pott brought a criminal claim against World Capital and BDA in Argentina. The Argentine court dismissed the claim, and its decision was affirmed on appeal. Pott intended to pursue further appeals in the criminal case. Pott applied for issuance of a subpoena to Icicle Seafoods, Inc. under 28 U.S.C. § 1782. The judge granted the application, and Icicle objected to the subpoena. Potts moved to compel. BDA sought leave to intervene in order to move to quash the subpoena; the judge permitted BDA to intervene, and BDA made a motion to quash.

BDA’s argument was that the application under § 1782 had been improvidently granted because Pott was not seeking discovery “for use in a foreign proceeding.” BDA claimed that Pott had already exhausted his appellate rights in Argentina; but the judge found that Pott had a narrow window of opportunity left to appeal further, and that even if there was only a small chance that the Argentine Supreme Court would accept his appeal, that improbability was not enough to show that the criminal case was over. Therefore, the judge found that the discovery was “for use in” the Argentine proceeding.

In the remainder of the decision, the judge weighed the Intel factors. The factors favored Pott, and the judge therefore denied the motion to quash. Points of particular note: neither party was able to do more than speculate about whether the Argentine courts would be receptive to evidence gathered in the US; BDA’s arguments about burdensomeness were undercut by the fact that Pott and Icicle had worked together cooperatively to limit the scope of the subpoena.

Original article: Case of the Day: In re Application of Pott. Letters Blogatory © 2013 Theodore J. Folkman and contributors. Some rights reserved.

There are still some kinks to iron out. For example, I have to rename the various courts (right now there are lots of courts called simply “Eastern District”, for example—I am going to change these to make it clear which is the Eastern District of New York, which is the Eastern District of California, etc.). I also would like to find a way to make the hierarchical nature of the search choices clear. I’ll also try to make the widget look nicer. But I wanted to get this out there to give you a sense of what’s coming.

Please note that not every case I’ve written about has been coded, but for the past few months and from now on, each and every case is being coded. As with everything at Letters Blogatory, I’m providing this search capability “as is,” i.e., don’t confuse it or anything else you read here for legal advice!

I want to give a special thanks to two Letters Blogatory readers who volunteered their time to help with the coding: Fanny Cornette, and Rebecca Phalen. Thanks to both for their efforts!

If you have ideas for further improvements to Letters Blogatory’s search functionality, please let me know. The goal is to make what is now a pretty good-sized database of cases more useful and accessible to lawyers.

Thanks as always for reading.

Original article: New Letters Blogatory Search Feature!. Letters Blogatory © 2013 Theodore J. Folkman and contributors. Some rights reserved.

Later, Wells Fargo Bank, N.A., sued Robinson and others in the San Diego Superior Court for payment of a defaulted loan. The court, at Wells Fargo’s request, appointed a receiver for Robinson. Wells Fargo also brought an action against Robinson in Mexico, and the Mexican court imposed a lien in Wells Fargo’s favor on real property held in trust for the benefit of Robinson.

Landstar, evidently aware that Wells Fargo had put itself at the head of the line by chasing Robinson’s assets in Mexico, asked the San Diego court to issue a letter rogatory under the Inter-American Convention requesting that the Mexican court recognize the California judgment liens and assign the right to receive the proceeds of the sale of the property in trust to Landstar, and also sought a restraining order enjoining Robinson from transferring its rights to the Mexican property. The lower court granted all of the relief sought, and Robinson appealed. The issuance of the letter rogatory (but not the restraining order) was stayed pending the appeal. It turned out that the restraining order was improper as a matter of California law (though leaving aside any California-specific issues, it seems proper to me to issue an order in personam restraining a judgment debtor from transferring its property anywhere in the world). So I don’t consider the restraining order further here. Instead, let’s focus on the question whether it was proper to issue a letter rogatory in the first place.

The court correctly concluded that the Inter-American Convention did not authorize the letter rogatory. Article 2 of the Convention provides:

This Convention shall apply to letters rogatory, issued in conjunction with proceedings in civil and commercial matters held before the appropriate judicial or other adjudicatory authority of one of the States Parties to this Convention, that have as their purpose:
a. The performance of procedural acts of a merely formal nature, such as service of process, summonses or subpoenas abroad;
b. The taking of evidence and the obtaining of information abroad, unless a reservation is made in this respect.

The court construed the phrase “procedural acts of a merely formal nature.” a “Procedural act” is a step “taken according to rules that prescribe the manner of conducting litigation or other judicial business, as opposed to rules that define parties’ substantive rights and obligations.” “Formal,” according to the court, here means “adhering to accepted forms, conventions, or regulations,” such as the “special or stipulated solemnities or formalities required for an act to become effective.” Thus the Convention extends to “customary or conventional steps that are taken to provide a person with a legally sufficient notice of a proceeding or of a document filed or issued in a proceeding, but that do not alter the person’s substantive rights or obligations.” The obvious conclusion: the Convention does not authorize a letter rogatory aimed at obtaining a substantive remedy such as an attachment or recognition of a California judgment liens.

Does this mean that the California court was forbidden to send a letter rogatory seeking such relief? I don’t know of any reason why the California court couldn’t send such a request, even if it is not authorized by the Convention. How a Mexican court would treat such a request is really a question of Mexican law, to which I don’t know the answer. If Mexico grants substantive relief on a foreign judgment without first recognizing the judgment, then it seems to me that Mexico is an outlier.

Original article: Case of the Day: Landstar Global Logistics v. Robinson & Robinson. Letters Blogatory © 2013 Theodore J. Folkman and contributors. Some rights reserved.

There were two main messages. The first was: the LAPs are in it to win it and are going to proceed with their current actions, and with actions in a total of 30 states, to obtain “every last penny” due under the Ecuadoran judgment. The second was that Chevron has been misleading its shareholders about the risks Chevron faces. Apparently a new letter is on its way to the SEC from unhappy Chevron shareholders complaining about the company’s disclsoures to investors.

Let me pause on the second message for a moment. I’ve previously reported on earlier variations on the theme. But I have to say I don’t get it. Nothing we are hearing from the LAPs is new or previously unreported and unavailable to the public. Yet no shareholders have sued Chevron for securities fraud as far as I know, and Chevron’s share price seems to be doing okay. Assuming that the LAPs are right and that Chevron’s disclosures regarding its litigation risk understate the true risk to the company, isn’t there enough information publicly known about the case to allow the market to make its own judgments?

There were a couple of questions from the folks listening in on the call. One reporter asked how the recognition and enforcement cases were being funded. Mr. Saenz didn’t really answer the question: he said that the LAPs are in “constant negotiations” with litigation funders, but he didn’t identify any funders and didn’t really say whether they had funding. Given the Burford Capital situation and the motion of the US lawyers to withdraw from the US litigation on account of nonpayment of fees, I think whether the LAPs do have third-party funding is a real question.

I also chimed in with a question. I wanted to nail down what Mr. Bruchou and Mr. Robalinho were saying about the laws of Argentina and Brazil, respectively. From both of them, I heard that there is no possibility of challenging the Ecuadoran judgment on grounds that the Ecuadoran judiciary was systematically inadequate. I pressed on this point: is it really the case that neither Argentina nor Brazil would allow a systematic challenge like this in any circumstances? The answer I got was that an Argentine or Brazilian court would never, in any circumstances, refuse to recognize a judgment on such grounds because it would require their courts to sit in judgment on the courts of another sovereign state. (That’s not a quote, but that was the gist of the message).

Can this really be right? If Chevron proved that judges in Ecuador threw darts at a board to determine how to rule in a case, would Brazil and Argentina really feel obligated to recognize the judgment? You can come up with your own hypotheticals, too: would Brazil really recognize a judgment from the courts of a state that did not permit witnesses to testify unless they were members of the forum state’s official church? Would Argentina really recognize a judgment from the courts of a state that used trial by ordeal? I just think this can’t be right. But if it is right, then I think Chevron ought to worry about its future in Argentina and Brazil.

A couple of pieces of actual news from the conference: The appeal of the LAP’s defeat in Canada is likely to be heard in September of this year. The LAPs are going to have some “very exciting news” about their efforts to attach Chevron’s intangible property in Ecuador in the near future.

Original article: Update: Lago Agrio Plaintiffs’ Press Conference. Letters Blogatory © 2013 Theodore J. Folkman and contributors. Some rights reserved.

The judge denied the motion. The facts were somewhat noteworthy because it was particularly clear that PTS and Rexon were sufficiently intertwined to make the outcome of the case pretty clear. For one thing, two other courts, in two different cases, had found PTS was an agent of Rexon for service of process. For another thing, Rexon itself, in testimony, had admitted that it did business in the US as PTS.

The judge treated the question as one of federal law, only turning to Kentucky law at the end of the opinion, to amplify his decision. I have previously opined that federal law does indeed govern, though as I have noted, there is not an enormous amount of federal common law on the question of agency.

Original article: Case of the Day: Moore v. Lowe’s Companies. Letters Blogatory © 2013 Theodore J. Folkman and contributors. Some rights reserved.

I haven’t written about the arbitration between Chevron and Ecuador in quite a while, so here is very brief post just to bring folks up to date. I highly recommend Luke Eric Peterson’s International Arbitration Reporter for additional and sometimes more timely coverage.

• On February 7, 2013, the tribunal issued its Fourth Interim Award, which held that Ecuador should show cause why it should not be liable to Chevron for damages arising from its violation of the earlier interim awards that ordered Ecuador to suspend the effectiveness of the Lago Agrio judgment against Chevron. The tribunal’s decision to seek to force Ecuador to suspend the judgment has been controversial to say the least, but it seems to me that whether the decision ultimately is right or wrong, and indeed whether Ecuador ultimately wins or loses on the merits, it is bound by the tribunal’s decision. In a regular US litigation we would call the principle at stake the collateral bar rule: you have to obey an injunction even if it is wrong until you persuade the court, or an appellate court, to vacate it.
• On February 18, 2013, Ecuador submitted a counter-memorial that lays out its arguments against Chevron’s claims of denial of justice. It’s a long document, and a full review of it would be a significant undertaking. I do want to highlight one argument Ecuador makes that I think has legs. The Lago Agrio judgment is still on appeal in Ecuador. Ecuador’s lawyers write: “a claim cannot be sustained where, as here, the claimant has failed to exhaust local remedies that would have or have in fact addressed the grievances of which it complains.” Chevron points to the fact that under Ecuadoran law the judgment is enforceable abroad to show that it has exhausted its local remedies or should be excused from further efforts to exhaust them. But is this reasonable? For one thing, Chevron could have prevented the judgment from becoming enforceable by posting a bond—a procedure that is part of the law in many jurisdictions including the United States. For another thing, it seems incorrect for Chevron to characterize the judgment as enforceable in any jurisdiction other than in Ecuador, since, as we have seen in Canada, it will be up to each state in which the LAPs seek recognition and enforcement to determine whether to give effect to the judgment. Anyway, it’s an interesting brief worth your time.

Original article: Lago Agrio: Update on the BIT Arbitration. Letters Blogatory © 2013 Theodore J. Folkman and contributors. Some rights reserved.

Several commenters submitted views to the USTR. Alfredo Lardizabal, CEO of MIC Food, supported renewal of the ATPA preferences. His company, which employs 20 people, imports “frozen plantain and yucca products,” feared that non-renewal would hurt his business. Olmedo Zambrano, general manager of Ecuadoran firm Eurofish S.A., took the same view; his company exports “tuna in pouch” to the United States and would take a hit if Ecuador lost its preference. Other comments from businesses were similar.

And then there was Chevron. As it did before, Chevron focused on Ecuador’s failure to comply with the award in the BIT arbitration; one of the statutory criteria for ATPA preferences is whether Ecuador “failed to act in good faith in recognizing as binding or in enforcing arbitral awards in favor of United States citizens or a corporation, partnership, or association which is 50 percent or more beneficially owned by United States citizens, which have been made by arbitrators appointed for each case or by permanent arbitral bodies to which the parties involved have submitted their dispute.”

We will continue to follow this corner of the saga.

Original article: Update on Ecuador and the ATPA. Letters Blogatory © 2013 Theodore J. Folkman and contributors. Some rights reserved.

Here are my two favorite sentences from the answer:

[T]he Department admits that it has interacted several times with Plaintiff but has not to date produced any records responsive to Plaintiff’s FOIA request, demonstrated that responsive records are exempt from disclosure requirements, notified Plaintiff of any determination regarding his FOIA request, or provided Plaintiff with a written notice under 5 U.S.C. § 552(a)(6)(B) extending the time for its response and providing a date on which a determination is expected to be made.

Remember, I submitted my FOIA request in August 2011! What have you been doing, State Department?

The FOIA request that is the subject of this action may implicate information that is protected from disclosure by one or more statutory exemptions.

That’s it? It’s true that the Department is not required to identify the exemptions on which it is relying in its answer. But after nearly two years it would be nice to know if the government has an actual basis for refusing to produce the documents or whether it is just really, really behind in its paperwork.

Original article: Letters Blogatory’s FOIA Case: The Government’s Answer. Letters Blogatory © 2013 Theodore J. Folkman and contributors. Some rights reserved.

Now before anyone gets too excited, let’s bear in mind that Judge Zambrano lives and works in Ecuador, and as far as I can tell from Roger’s reporting, he was not under any compulsory process (I don’t know the Peruvian equivalent of a subpoena) to appear. Let’s think about how this would play out in a simpler lawsuit here in the United States. Suppose I sue you in the federal court in Boston, and in opposition to my motion for summary judgment you submit a declaration by a witness who lives and works in California. If I want to take the deposition of the declarant, and if the declarant isn’t someone you control (e.g., your employee or your agent), I am going to have to go to California. You, I, and the declarant could negotiate some other arrangement—we could meet in St. Louis—but the basic rule is that a non-party declarant can’t be compelled to travel to suit the convenience of the parties. If you are interested in the details of this, take a look at FRCP 45(b)(2), which spells out the rule and which states the handful of exceptions, e.g., the 100-mile “bulge jurisdiction” that comes in handy in my neck of the woods pretty often, given that bits of all of the New England states are within 100 miles of Boston. Sure, the case in Judge Kaplan’s court is complex and sprawling and difficult to get your arms around, but it’s governed by the same rules of civil procedure that govern all proceedings in the District Court, and the rule is that you can’t compel the attendance of a non-party at a deposition, with very limited exceptions, absent a subpoena, full stop.

So in an ordinary case, it seems to me that Judge Zambrano would be entirely within his rights to refuse to travel to Peru to testify, and indeed, to refuse to testify without compulsion even in Ecuador, if he chose. Let Chevron obtain a letter rogatory requesting judicial assistance in Ecuador. The twist in this case is that Judge Kaplan has ordered the depositions of Ecuadoran witnesses to take place in Peru because Chevron has asserted that its lawyers “would face reprisals and possible criminal prosecution if they set foot in Ecuador,” according to Roger’s report. Let’s assume that that’s so: I don’t see how it changes the obligations of Judge Zambrano.

Original article: The Zambrano Deposition: Failure To Launch. Letters Blogatory © 2013 Theodore J. Folkman and contributors. Some rights reserved.