Letters Blogatory Sues the Government Under FOIA

Readers who are following the Lago Agrio case will know that until the Second Circuit decided Naranjo (and maybe even now), one of the main questions Chevron sought to litigate in New York was whether the Ecuadoran courts were systematically inadequate, that is, whether they met the standards of impartiality and due process necessary to allow the Lago Agrio judgment to be recognized under US law. One of the sources that folks cite when discussing the adequacy of the Ecuadoran judiciary—or of another country’s judiciary, for that matter—is the State Department’s Human Rights Reports. Those reports include assertions about the independence of the foreign country’s judiciary. For example, the 2011 report on Ecuador states:

While the constitution provides for an independent judiciary, in practice the judiciary was susceptible to outside pressure and corruption. The media reported on the susceptibility of the judiciary to bribes for favorable decisions and faster resolution of legal cases. Judges occasionally reached decisions based on media influence or political and economic pressures.

The language of the reports changes from year to year. For example, in 2007 the report on Ecuador read:

While the constitution provides for an independent judiciary, in practice the judiciary was at times susceptible to outside pressure and corruption …

How do these changes get made? How does the State Department decide whether a particular foreign judiciary has lived up to standards? My guess—but it’s only a guess—is that interested parties lobby the State Department. My guess—and again, it’s only a guess—is that the lobbying might be especially intense when, as in the Lago Agrio case, the quality of a foreign judiciary is relevant to a significant pending case.

So what to do? Well, in August 2011, I made a request to the State Department under the Freedom of Information Act, seeking:

1. Documents constituting, referring to, or concerning requests made to the state Department by corporations or other business entities; by lawyers, consultants, lobbyists, or others representing corporations or other business entities; or by members of Congress or congressional staffers, proposing modification of the description of the judiciary of any foreign state in the State Department’s Human Rights Report or Judicial Assistance reports relating to that state.

2. Documents constituting, referring to, or concerning reports or correspondence by corporations or other business entities, or by lawyers, consultants, lobbyists, or others representing corporations or other business entities, relating to actual or alleged corruption, failure to provide due process of law, partiality, or lack of independence of the judiciary of a foreign state.

Looking back, I probably should not have limited my requests to business interests, but that’s water under the bridge now. Anyway, I have had numerous telephone calls and exchanged several letters with the State Department’s FOIA office, but to date the State Department has not responded formally to my request. 1 This is not terribly surprising, as many government agencies have a FOIA backlog, but since the State Department has missed an estimated date for a response that it gave me by telephone by several months, it’s time to take firmer measures. And thus today’s case of the day is Folkman v. State Department. I filed a complaint on Friday in the federal court here in Boston seeking production of the documents I have requested.

What do I hope to get out of this? First and foremost, I hope to be able to report on a previously unreported corner of the Lago Agrio affair. Now it may turn out that no one lobbied the State Department in connection with the case, but that’s what the FOIA request is aimed at finding out. Second, it will be interesting to look more broadly at whether companies are actively seeking to shape the Human Rights Reports for their own purposes. Maybe I will get an article out of it!

I have set up a page where you can keep track of all of the papers filed in the case. You can navigate to that page using the “Special Coverage” menu.

Notes:

  1. The State Department did deny my request for expedited handling. I had made the request on the grounds that I was a representative of the news media, but to no avail. I think if I litigated this issue I would win, but I also think that the question of bloggers as reporters is more than I want to bite off, so I am letting it lie. But if you are reading this and would like to take up the torch, let me know!

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 2012), 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.

3 thoughts on “Letters Blogatory Sues the Government Under FOIA

    1. L Conrad, since the defendant is an agency of the United States, service is governed by FRCP 4(i)(2), which requires service on the United States and service on the agency by registered or certified mail to the agency. Service on the United States is governed by FRCP 4(i)(1), which permits service by certified mail to the US Attorney and to the Attorney General.

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