Case of the Day: Minis v. Thomson

The case of the day is Minis v. Thomson (D. Mass. 2014). According to the applicants’ brief, Loserian Minis, Joshua Makko, and Lotha Nyaru were plaintiffs in an action in the High Court of Tanzania, Mondorosi Village Council v. Tanzania Breweries Ltd. The claim was that the plaintiffs, “Maasai pastoralists who have historically resided in the removte Ngorongoro District of the Arusha Region of Tanzania,” were the rightful owners, “through customary use and adverse possession,” of more than 12,000 acres of land called Sukenya Farm. They alleged that “Thomson Safaris’ Tanzanian affiliate, Tanzania Conservation Limited (TCL), forcibly evicted them and their fellow villagers so Thomson Safaris could run luxury safaris on the land.” Wineland-Thomson Adventures, which does business as Thomson Safaris, is a Massachusetts business, and the applicants sought leave under § 1782 to obtain discovery in the US from Thomson Safaris and its owners, Judi Wineland and Warwick Thomson concerning the ownership and use of the land (both of which were, of course, relevant to the claim of adverse possession).

On the statutory requirements under § 1782, the only interesting issue was whether Minis, Makko, and Nyaru were interested parties, as they were not the plaintiffs in the Tanzanian action—the villages themselves were the plaintiffs. The judge held that because they were the officials acting on behalf of the villages, they qualified as interested persons. This seems right to me, and in particular, I believe it is often useful to name a government official as the applicant when the real party in interest is a governmental body, because of questions whether a governmental body is a “person” entitled to make use of the statute.

The Intel factors favored the application. The most interesting of the factors was receptivity. The judge pointed out that there was no requirement that the evidence be discoverable, and while the cases are split on who has the burden of proof on receptivity, here there was no evidence that the Tanzanian court would be unreceptive.

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.

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