In today’s case of the day, In re Mesa Power Group LLC (D.N.J. 2012), we return to the case of the day from July 25, 2012. Mesa had commenced a NAFTA arbitration against Canada alleging inequitable treatment by the government of Ontario in the awarding of contracts in the renewable energy field. In today’s case, Mesa sought leave under 28 USC [section] 1782 to serve a subpoena on Samsung for the production of documents, and to obtain the attendance of two of Samsung’s officers, president Kyo In Choo and treasurer Jin Goo Kwon, to testify at depositions. Mesa claimed that Canada had entered into a renewable energy contract with Samsung that precluded Mesa from entering into a similar contract with Canada, allegedly in violation of NAFTA.

The judge found that the statutory prerequisites were met—Mesa, a party to the NAFTA arbitration, was an “interested person”; Samsung resided or was found in the district; the evidence was sought for use in an international proceeding. The court lingered on the propriety of proceeding ex parte: [section] 1782 applications are always or nearly brought ex parte, and so the propriety of proceeding ex parte isn’t really open to question. This makes it all the more strange that Mesa thought it necessary to justify its decision to proceed ex parte by claiming a risk that Samsung, if given notice of the proceedings, would spirit the documents out of the jurisdiction. Really?

The judge reviewed the Intel factors, and her discussion of them was unremarkable except on the issue of undue burden. The usual procedure is to wait for the target to move to quash after the subpoena has issued. Here, the judge took it on herself to decide that some of the requests were unduly burdensome when deciding whether to issue the subpoena, before hearing Samsung. This is permissible, but it seems to me the better procedure is to wait to hear from the target. Why make a decision that might prove unnecessary?