Okay, I admit it, I cannot write about most of what is going on in the Lago Agrio case anymore—it is too depressing. However, there was an interesting ancillary decision recently that I will cover. The case is Chevron Corp. v. Donziger (S.D.N.Y. 2020), and it involves post-judgment third party discovery. Chevron served a subpoena on Patricio Salazar Cordova, an Ecuadoran lawyer, while he was visiting New York City. A persn can be validly served with a subpoena anywhere in the jurisdiction of the United States. But ordinarily under FRCP 45 a subpoena cannot require the recipient to appear or to produce documents more than 100 miles from where he resides, is employed, or regularly transacts business in person. Everyone agreed that Salazar did not have sufficient contacts with New York to come within the 100-mile rule. Chevron made an argument that the geographical limitations didn’t matter since Salazar could produce the documents electronically with the push of a button, but that argument is obviously incorrect and Judge Kaplan rightly rejected it.
But that’s not the end of the case! A subpoena issued under New York law does not have a 100-mile geographic limitation. FRCP 69(a)(2) provides that “[i]n aid of the judgment or execution, the judgment creditor … may obtain discovery from any person—including the judgment debtor—as provided in these rules or by the procedure of the state where the court is located.” The question is whether the bit in the rule about state procedures means that in these circumstances, Chevron can make use of the state procedure and require Salazar to appear and testify in the United States, or more specifically, New York. The first answer might be that because Chevron served federal subpoenas it is stuck with federal procedures. It’s true that Chevron also served a document that references a provision of New York law treating a failure to obey a subpoena as a contempt of court, but the same document also references provisions of FRCP 45. The situation is unclear, at least to me.
But even if Chevron had unambiguously relied on state procedure, would its course of action be correct under the rules? In my view Judge Kaplan was probably not right to say that you can use a state subpoena in a federal action in this way. I understand FRCP 69(a)(2) to mean that you can use whatever special state procedures exist to take post-judgment discovery. You could, for example, use what we in Massachusetts call supplementary process, which is a procedure for summoning the judgment debtor to court to testify under oath about his property, and issuing a capias ad respondendum (an order for his arrest) if he does not show up. Other states might have procedures for written interrogatories, or whatever. See, e.g., U.S. v. McWhirter, 376 F.2d 102 (5th Cir. 1967). But it seems to me that a subpoena is a subpoena is a subpoena, and “issuing a subpoena” under a threat of contempt doesn’t seem to me to be some sort of special New York procedure. There could be a decision out there that takes the approach Judge Kaplan takes, but I don’t think one is cited in the decision. In my own practice, I have issued federal subpoenas in the D. Mass. for post-judgment discovery, but used Massachusetts supplementary process writs, because that is the special state-law procedure that FRCP 69 means to incorporate. I could be wrong about this, but that’s how I see it.