The case of the day is Iraq Telecom Ltd. v. Mustafa (E.D. Pa. 2024). In 2019, Iraq Telecom filed an ex parte application under 28 U.S.C. § 1782 seeking leave to serve a subpoena on Dechert LLP seeking evidence for use in an ICC arbitration against Mustafa and others and a prospective lawsuit in the UK. The court granted the ex parte application. Of course, today that would not be the likely outcome, as we now know that private international arbitral tribunals are not “foreign or international tribunals” for purposes of Section 1782. How young the world seemed in 2019.

Anyway, in 2022, Mustafa and other respondents in the arbitration sough to intervene in the 2019 proceeding, and they made their own application under Section 1782 to seek evidence from Dechert for use in the same arbitration. Apparently, they brought the application in the same case, i.e., they didn’t begin a new case or pay a new filing fee.

In 2023, the ICC tribunal issued a final award in favor of Iraq Telecom in the amount of $1.65 billion. Iraq Telecom then moved to confirm the award, again in the same proceeding. The motion to confirm was served via ECF, the US federal courts’ electronic filing service. In practice, this means that counsel for Mustafa and the others received emails from the court with links to the motion papers.

Mustafa did not respond to the motion, and Iraq Telecom asked the court for entry of default. Then, Mustafa’s lawyers moved for leave to withdraw, with Mustafa’s consent. They argued that the Section 1782 case was over once the arbitral award issued. The idea was to try to forestall an argument that Mustafa had consented to the court’s jurisdiction of the motion to confirm or that the lawyers were authorized to accept service.

The judge first raised an interesting procedural matter. The 1782 proceeding was on the court’s miscellaneous docket. That is the usual practice. But was it proper to seek to confirm an arbitral award in a miscellaneous proceeding? Or is it necessary to bring a new civil action? The main practical difference between the two, from the litigant’s perspective, is the filing fee. The court found, probably correctly, that the motion to confirm should be brought as a civil action, and so it directed the clerk to open a new civil action with a new docket number. Interestingly, the court relied on something called the District Clerk’s Manual, which has guidance on this and other questions. As far as I know, that document is not publicly available, and the URL given in the decision apparently points to the courts’ intranet. I do not think the Freedom of Information Act would apply to documents created by the Administrative Office of the US Courts. So if anyone has a copy or has seen one, please let me know!

Anyway, the court then moved on to the main question: was Mustafa subject to the court’s jurisdiction? Yes, the court said, because Mustafa had failed to object when he had the chance, after Iraq Telecom made its motion. This holding relies on Mustafa’s voluntary presence in the case. If Mustafa had never appeared before the court, or if he had appeared before the court in some other case rather than in the case in which Iraq Telecom brought the motion to confirm, there would be no basis for finding a waiver, since Iraq Telecom would have to be served before it could be expected to respond.

There is too much gamesmanship on both sides of this for me to have a clear sense of what the answer should be. On the one hand, Iraq Telecom made the motion to compel in the 1782 proceeding, probably with the intention of persuading the court that Mustafa was already within the court’s jurisdiction, even though the 1782 case was effectively over. On the other hand, Mustafa tried to avoid making himself amenable to service by having his lawyers withdraw, but after they had received notice of the motion to confirm. I get the satisfaction lawyers take in this kind of maneuvering. I love it too. But this example is a little bit off the deep end.