The case of the day, In re Chevron Corp. (D. Md. 2010), is one of Chevron’s applications for judicial assistance in the Lago Agrio case. Chevron sought discovery from two of the Lago Agrio plaintiffs’ experts. It sought the discovery for use in the Lago Agrio case itself as well as for use in the BIT arbitration between Chevron and Ecuador.
The court, following an earlier SDNY decision, held that “international arbitral bodies operating under UNCITRAL rules constitute ‘foreign tribunals’ for purposes of Section 1782.” I think this phrase, in itself, is misleading, because any arbitral tribunal can adopt the UNCITRAL rules; it’s not the use of the UNCITRAL rules that should be dispositive. But the court went on to say: “To be clear, because arbitral bodies are created by treaty and not by private parties, they do in fact constitute ‘foreign tribunals for purposes of the statute.'” Thus I think the court is saying that because this arbitration was not a private arbitration, but an investment treaty arbitration, the statute applied. I agree with this view. Although on several occasions I’ve opined that private arbitral tribunals are not “tribunals” for purposes of the judicial assistance statute, I’ve tried to be careful to distinguish treaty arbitration, which is public or quasi-public.
The court went on to apply the Intel factors. Neither of the targets of the discovery were parties to Lago Agrio case or the arbitration. The court found the respondents had failed to show that the Ecuadorian court would be unreceptive to the discovery. Although there was evidence that Chevron would not be entitled to seek this evidence under Ecuador’s discovery procedures, the court found there was no circumvention of proof-gathering restrictions, noting that the statute “contains no requirement that evidence sought from a federal court be discoverable under the law governing the foreign proceeding.” Finally, the court found that the respondents had not shown undue burden. In a noteworthy but minor point, the court rejected the respondent’s argument that the limitation in Fed. R. Civ. P. 30 on the number of depositions that could be taken without leave of court did not apply to depositions taken in multiple § 1782 proceedings in multiple districts.