Case of the Day: Republic of Ecuador v. Connor

The case of the day is Republic of Ecuador v. Connor (5th Cir. 2013). I love this case. After Chevron initiated the BIT arbitration against Ecuador, Ecuador sought discovery from GSI Environmental and its owner, John A. Connor, under 28 U.S.C. § 1782. Although Chevron had previously argued around the country that the BIT tribunal was an “international tribunal”, as required to bring its own discovery requests within the scope of the statute, here it argued that the BIT tribunal was not an international tribunal in light of Fifth Circuit precedent. The district court agreed, but the Fifth Circuit has now reversed. I’m not going to go into the details of why the Fifth Circuit determined that Chevron was judicially estopped. The essence of the decision is in the following observation the court made in its discussion: “Why shouldn’t sauce for Chevron’s goose be sauce for the Ecuador gander as well?”

The Fifth Circuit’s decision supports my notion that it would have been wise to consolidate the many § 1782 cases arising out of the Lago Agrio litigation filed around the country in a single district for purposes of deciding whether the subpoenas should have issued in the first instance, if not for purposes of deciding whether particular subpoenas were unduly burdensome, or sought privileged matter, or whatever was particular to individual targets of the subpoenas. In a single sprawling dispute such as this, there should be a single answer to such questions as whether a BIT tribunal is an international tribunal for purpose of the statute.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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