The case is Salcido-Romo v. Southern Copper Corp. (D. Ariz. 2016). Alberto Salcido-Romo and others were residents of a rural community in Sonora, Mexico. An indirect subsidiary of Southern Copper Corp. operated a mine near their community. In 2014, 10 million gallons of toxic mining waste flowed into a local river, affecting Salcido-Romo and the others. They brought various amparo actions in the Mexican courts against governmental defendants and against the indirect subsidiary that operated the mine. They also planned to bring environmental tort lawsuits against the mine operator and its parent, a Southern Copper Corp. subsidiary. Salcido-Romo sought leave to take discovery under § 1782 for use in the Mexican actions.

The statutory prerequisites for a § 1782 application were met. One key factor was circumvention. The judge noted that although Southern Copper was not a party to the Mexican cases, the subsidiaries were, and many of the documents ultimately were likely to be in the possession of the subsidiaries, in Mexico. The location of the documents was particularly relevant to the judge, who noted the burden involved in bringing documents from Mexico to the United States, only to return them for use in Mexican proceedings. All of this seems within the judge’s discretion, though the emphasis on burden seems more sensible than the emphasis on circumvention, given the lack of discussion about the relevant Mexican law.

The judge allowed the application to the extent it called for production of documents located in the United States. The judge recognized that ESI could present issues, since the problem with ESI is not just physical location, but also Southern Copper’s ability to access the information.