A decision from a Magistrate Judge in Colorado includes some useful learning on international practice under 28 U.S.C. Section 1782. Republic of Ecuador, et al. v. Bjorkam (Chevron), Civil Action No. 11-cv-01470-WYD-MEH (D. Colo. Aug. 2011).

The underlying international litigation is related to the Chevron litigation we have posted on many times. This proceeding relates to Chevron's efforts to obtain discovery from Bjorn Bjorkman, an environmental expert "who authored reports for Chevron, for use in a bilateral investment treaty arbitration before the United Nations Commission on International Trade Law", or UNCITRAL, arbitral body. Chevron and the expert opposed discovery. The Court rejected their arguments.

First, the Court had no difficulty concluding that "international arbitral bodies operating under UNICITRAL rules constitute 'foreign tribunals' for purposes of Section 1782″.

Second, on the basis of the Supreme Court's recent Section 1782 decision in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), the Court observed that it had discretion to deny the requested discovery "even if all the statutory requirements are met". Those requirements are, typically, quite easily satisfied:

"(1) the person from whom discovery is sought resides (or is found) in the district of the district court to which the application is made, (2) the discovery is for use in a foreign proceeding before a tribunal, and (3) the application is made by a foreign or international tribunal or any interested person."

Third, the Court adumbrated and applied the factors "for a court to consider when deciding whether to permit discovery:

(1) whether the party from whom discovery is sought is a participant in a foreign proceeding, or already subject to the jurisdiction of the foreign tribunal; (2) the nature and character of the foreign proceedings; (3) the receptivity of the foreign tribunal to such judicial assistance; (4) whether the request is an attempt to circumvent foreign discovery restrictions; and (5) whether the request is unduly intrusive or burdensome.

Importantly the Court ruled that the "[d]iscovery rules in foreign tribunals bear no import on the provision of assistance under Section 1782″, since, among other reasons, "the foreign tribunal can place conditions on its acceptance of the information to maintain whatever measure of parity it concludes is appropriate".

Finally, the Court determined that Fed. R. Civ. R. 26(b)(5) applied to Section 1782 proceedings and that the burden was on Chevron to demonstrate that any of the expert's materials were immune from discovery under the work product doctrine.


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