Consolidation of Applications for Judicial Assistance
Posted on September 26, 2011
We’ve seen many judicial assistance applications filed all over the country by both sides in the Lago Agrio case. Why are these not consolidated into a single proceeding?
One answer may be that the parties are engaged in a war of attrition and are not interested in consolidation. Another answer may be that there is some question about the availability of consolidation in this context. But there is precedent for consolidation, and as I’ll suggest below, consolidation would make a lot of sense.
The statute on multidistrict consolidation, 28 U.S.C. § 1407, provides:
(a) When civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings. Such transfers shall be made by the judicial panel on multidistrict litigation authorized by this section upon its determination that transfers for such proceedings will be for the convenience of parties and witnesses and will promote the just and efficient conduct of such actions. Each action so transferred shall be remanded by the panel at or before the conclusion of such pretrial proceedings to the district from which it was transferred unless it shall have been previously terminated: Provided, however, That the panel may separate any claim, cross-claim, counter-claim, or third-party claim and remand any of such claims before the remainder of the action is remanded.
(b) Such coordinated or consolidated pretrial proceedings shall be conducted by a judge or judges to whom such actions are assigned by the judicial panel on multidistrict litigation. For this purpose, upon request of the panel, a circuit judge or a district judge may be designated and assigned temporarily for service in the transferee district by the Chief Justice of the United States or the chief judge of the circuit, as may be required, in accordance with the provisions of chapter 13 of this title. With the consent of the transferee district court, such actions may be assigned by the panel to a judge or judges of such district. The judge or judges to whom such actions are assigned, the members of the judicial panel on multidistrict litigation, and other circuit and district judges designated when needed by the panel may exercise the powers of a district judge in any district for the purpose of conducting pretrial depositions in such coordinated or consolidated pretrial proceedings.
(c) Proceedings for the transfer of an action under this section may be initiated by–
(i) the judicial panel on multidistrict litigation upon its own initiative, or
(ii) motion filed with the panel by a party in any action in which transfer for coordinated or consolidated pretrial proceedings under this section may be appropriate. A copy of such motion shall be filed in the district court in which the moving party’s action is pending. * * *
Perhaps there is a concern about whether a request for judicial assistance is a “civil action” for purposes of 28 U.S.C. § 1407(a), or whether the venue provisions of the judicial assistance statute, 28 U.S.C. § 1782(a), which require the proceeding be brought where the target resides or is found, somehow trump the MDL statute. Or perhaps there is some other argument altogether about why the statute should not apply.
But I know of at least one instance in which the Judicial Panel on Multi-District Litigation has consolidated multiple judicial assistance applications: In re “Asta Medica, S.A., et al./Pfizer, Inc., and Deponents” Subpoena Litigation (MDL No. 904). Unfortunately, the case is old enough that any orders or opinions of the JPML are not available on the on-line docket. But the First Circuit noted the consolidation in In re Application of Astra Medica, S.A., 981 F.2d 1, 3 n.2 (1st Cir. 1992).
Given the number of participants in the Lago Agrio litigation (Ecuador and various Ecuadorian officials, the Lago Agrio plaintiffs themselves, Chevron, each of the US persons from whom the parties are seeking discovery), it’s surprising to me that no one has made a motion to the JPML for consolidation. Indeed, this case has garnered enough attention and consumed enough judicial resources that I wonder whether it would be an appropriate case for the exercise of the JPML’s power to begin proceedings for consolidation sua sponte.
One wrinkle on this idea: suppose that the applications for judicial assistance were consolidated, and a single judge ruled that the discovery could go forward. Subpoenas would still have to be issued to each of the targets in the appropriate district. Since the territorial reach of a court’s subpoena power is a matter of jurisdiction rather than of proper venue, I don’t see any way around this. So under Rule 45, each target would then be able to move to quash the subpoena in the district from which the subpoena issued. Even so, there would still be plenty to gain by consolidation, as only one court would have to consider questions such as whether the statutory prerequisites for application of § 1782 are met, or whether the Intel factors favor allowing the discovery. And it may be that the JPML would even consider consolidating the motions to quash. That issue arose in In re Congoleum Corp. Bankruptcy Subpoenas Litigation (MDL No. 1633), though the motion for consolidation was withdrawn before the panel ruled on it.