The case of the day is In re Application of Rivada Networks (E.D. Va. 2017). Rivada was an unsuccessful bidder for a Mexican government telecommunications contract. It claimed that the winning bidder, Altan, had received a copy of the government’s confidential bidding memorandum before the bid, thus rendering the bid process unfair. Rivada brought an action in the Mexican federal court and brought an ex parte § 1782 application to serve subpoenas on Brett Haan, a Virginia resident who helped the government in the bidding process.

The court granted the application. Rivada served the subpoena, and the deposition began, but Rivada had not provided notice to Altan. Altan asked for and received permission to intervene in the Mexican case and also moved to intervene in the § 1782 case for the purpose of obtaining an order to prevent Rivada from using the deposition testimony in the Mexican proceeding or releasing it to the media until Altan had had an opportunity to cross-examine Haan.

There was a jurisdictional question, since Rivada claimed the § 1782 case was moot. But the judge easily, and I think correctly, put this to the side. Even after a court grants a § 1782 application, the target of the discovery certainly can ask a court for a protective order, and I think a party in Altan’s position can do the same.

The main point of interest is the notice to which Altan was entitled. The judge held that Altan was not entitled to notice of the application itself—section 1782 applications are routinely filed and granted ex parte. But once the application has been granted, the judge held that FRCP 45 required that third-party subpoenas be served on all parties to the action. And when the foreign action is prospective, the judge held that FRCP 27 required the same result. I think the outcome is sensible, and it is supported by some precedent, even though it does not seem to me to be compelled by the text of the relevant rules, which do not specifically mention subpoenas issued to obtain evidence in foreign proceedings. As a practical matter, in my experience some courts avoid this problem altogether by requiring that notice of the ex parte application be given to the parties adverse to the applicant.

The judge held, correctly, that Altan should have the opportunity to cross-examine. But he refused to forbid Rivera from using the deposition in the Mexican case or discussing it in the media, as the media already knew of the substance of the deposition and the judge was unwilling to take the decision about the permissibility of using the deposition in the Mexican case from the Mexican court.