The case of the day is Mare Shipping, Inc. v. Squire Sanders (US) LLP (2d Cir. 2014). The case arose out of the sinking of the Prestige, an oil tanker, off the coast of Spain in 2002, which resulted in a large oil spill. Apostolos Mangouras, the captain of the ship during the accident, had sought a port of refuge in Spain immediately before bad weather caused the ship to sink, but Spain had denied him refuge. After the incident, he was charged with several crimes in Spain, but in the end he was acquitted of all charged except a charge of “serious disobedience to authority.”

While the criminal case was ongoing, Spain brought an action in New York against the American Bureau of Shipping, raising claims relating to the Prestige sinking. Spain was represented by Brian D. Starer, who prepared several witness declarations that were filed with the court. These included declarations of George Alevizos, a witness for Spain on the condition of the Prestige, Jens Jorgen Thuesen, the Danish pilot who had guided the Prestige through the Danish straits in 2002 and testified regarding the ship’s condition, and Captain Efstratios Kostazos, the ship’s prior captain. The court ultimately entered summary judgment in favor of the ABS, and the Second Circuit affirmed.

Mangouras argued that he became aware, near the end of the proceedings in Spain, that some of the declarations Starer had prepared on Spain’s behalf “were false or based upon false premises.” In particular, he claims that the testimony of Alevizos, Thuesen, and Kostazos in Spain was inconsistent with their written declarations in New York. So Mangouras sought leave under § 1782 to serve a subpoena on Starer and his new law firm, Squire Sanders, for use in the Spanish case (even though the proceeding closed two days after the § 1782 request was filed), a potential appeal in Spain, a private criminal proceeding in Spain known as a querella, and an action in the European Court of Human Rights. The District Court denied the request, and Mangouras appealed.

The Second Circuit held that the judge had acted within his discretion in denying the request after balancing the Intel factors, though the appellate court did not give a detailed explanation.

To me, the more interesting issue was Squire Sanders’s claim that the request was barred by the doctrine of sovereign immunity. The court correctly held that a foreign sovereign’s counsel is outside of the FSIA’s definition of a foreign state. Another way to approach the problem, I think, would have been via statutory construction of § 1782 itself. The precedents hold that a foreign state is not a “person” from whom discovery can be sought under § 1782, yet an individual acting on behalf of the state is a “person” for purposes of the statute. I discussed a very similar issue in connection with Ecuador v. Bjorkman back in August 2011.