The Zambrano Deposition: Failure To Launch

Roger Parloff is reporting that Judge Nicolás Zambrano Lozada did not appear at a scheduled deposition today in Peru where he was scheduled to testify. Recall that theLago Agrio plaintiffs had submitted a declaration from Judge Zambrano rebutting the claims of corruption made by Judge Alberto Guerra Bastidas in a declaration that Chevron had earlier filed.

Now before anyone gets too excited, let’s bear in mind that Judge Zambrano lives and works in Ecuador, and as far as I can tell from Roger’s reporting, he was not under any compulsory process (I don’t know the Peruvian equivalent of a subpoena) to appear. Let’s think about how this would play out in a simpler lawsuit here in the United States. Suppose I sue you in the federal court in Boston, and in opposition to my motion for summary judgment you submit a declaration by a witness who lives and works in California. If I want to take the deposition of the declarant, and if the declarant isn’t someone you control (e.g., your employee or your agent), I am going to have to go to California. You, I, and the declarant could negotiate some other arrangement—we could meet in St. Louis—but the basic rule is that a non-party declarant can’t be compelled to travel to suit the convenience of the parties. If you are interested in the details of this, take a look at FRCP 45(b)(2), which spells out the rule and which states the handful of exceptions, e.g., the 100-mile “bulge jurisdiction” that comes in handy in my neck of the woods pretty often, given that bits of all of the New England states are within 100 miles of Boston. Sure, the case in Judge Kaplan’s court is complex and sprawling and difficult to get your arms around, but it’s governed by the same rules of civil procedure that govern all proceedings in the District Court, and the rule is that you can’t compel the attendance of a non-party at a deposition, with very limited exceptions, absent a subpoena, full stop.

So in an ordinary case, it seems to me that Judge Zambrano would be entirely within his rights to refuse to travel to Peru to testify, and indeed, to refuse to testify without compulsion even in Ecuador, if he chose. Let Chevron obtain a letter rogatory requesting judicial assistance in Ecuador. The twist in this case is that Judge Kaplan has ordered the depositions of Ecuadoran witnesses to take place in Peru because Chevron has asserted that its lawyers “would face reprisals and possible criminal prosecution if they set foot in Ecuador,” according to Roger’s report. Let’s assume that that’s so: I don’t see how it changes the obligations of Judge Zambrano.

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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