Case of the Day: In re Application of the Republic of Ecuador
Posted on January 5, 2016
The case of the day is In re Application of the Republic of Ecuador (D. Mass. 2015). The case is basically a routine § 1782 request made by Ecuador seeking discovery from Dr. Gregory S. Douglas, one of Chevron’s expert witnesses, for use in the BIT arbitration. The case follows several earlier cases, which I have covered, allowing discovery into expert witness materials notwithstanding the work product doctrine. So, as I say, there is not much of particular interest in the decision itself. There is, however, something extraordinary about the case.
Ecuador filed its application in October 2011. The application was argued on January 3, 2012. Ecuador filed various notices, probably with the intention of prodding the judge to make a decision. But nothing happened until August 2015, when the court set a status conference for September 2015. After the conference and some additional briefing, the judge finally issued his decision on December 18 of this year. The Chevron/Ecuador case is the rare case where it probably still makes sense for the parties to be fighting about discovery matters four years after they were first raised. Nevertheless, the interminable delays here may have prejudiced the parties. I suggest that in this case the court failed in its responsibility to give litigants a just, speedy, and inexpensive determination of their dispute. I know of no other § 1782 case with a comparable delay.