Case of the Day: In re Application of HydroDrive Nigeria

The case of the day is In re Application of HydroDrive Nigeria, Ltd. (S.D. Tex. 2013). HydroDrive applied for issuance of a subpoena to Cal Dive International, a Texas firm, for use in two Nigerian proceedings: a defamation claim HydroDrive had brought against Saipem S.A. and Saipem Contracting Nigeria, Ltd., in the High Court in Lagos, and an investigation before the Nigerian Content Development and Monitoring Board. The decision is interesting because, unlike most § 1782 decisions, it turns to a large extent on the statutory prerequisites for the application of § 1782 rather than the discretionary Intel factors.

First and perhaps most interestingly, the judge rejected Cal Dive’s argument that the statute applied only if the documents sought are in the United States. The statute does not explicitly require this, and the judge took what I think is the sensible view that all that is required is that the person to whom the subpoena is to be directed must “reside or be found” in the United States, as the statute does expressly requires. A subpoena is a command directed to a person, not to the documents. But this point is disputed: in my post on In re Veiga, I noted the split of authority.

The parties argued about whether the NCDMB, a “body established to implement and ensure compliance with the Nigerian Oil and Gas Industry Content Development Act,” was a “tribunal” for purposes of the statute. The NCDMB conducts closed-door investigations that may lead to the filing of a lawsuit in court, and in such a case, the court would then make dispositive rulings about compliance or noncompliance with the Act. The judge read Intel to permit judicial assistance to any tribunal whose decisions could lead to a dispositive ruling. In other words, it’s not necessary that the tribunal itself be empowered to make dispositive rulings. This seems correct insofar as the statute plainly permits a subpoena in a case that is still in the investigative stages, i.e., that is not yet before any tribunal.

Cal Dive argued that the evidence sought was not “for use” in either of the Nigerian proceedings, since it was irrelevant to both. The judge first rejected the notion that “for use” was to be defined narrowly, with reference to admissibility. But he then went on to explain the potential relevance of the documents anyway—an explanation I will not repeat.

The judge undertook a brief and not particularly novel discussion of the discretionary factors, which here included a protective order suitable to protect what Cal Dive asserted was its interest in the confidential and proprietary nature of the documents.

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