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In re Application of: Republic of Ecuador

October 13, 2010

IN RE APPLICATION OF: THE REPUBLIC OF ECUADOR, APPLICANT,


The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER GRANTING THE REPUBLIC OF ECUADOR'S EX PARTE APPLICATION FOR THE ISSUANCE OF A SUBPOENA

To Issue a Subpoena for the Taking of a Deposition and the Production of Documents. (Document 1)

RELEVANT BACKGROUND

On September 14, 2010, the Republic of Ecuador ("ROE") filed an ex parte application for an order pursuant to Title 28 of the United States Code section 1782 to issue a subpoena to Wayne Hansen for the taking of a deposition and the production of documents for use in a foreign proceeding. (See Docs. 1 & 2.)

More particularly, the ROE seeks the issuance of a subpoena to Wayne Hansen, a resident of this judicial district. The subpoena attached as Exhibit A to ROE's request reflects that the ROE seeks Mr. Hansen's testimony as well as production of documents in his possession, custody or control. (Doc. 1, Ex. A.) The deposition and documents are directly relevant to an international arbitration proceeding brought pursuant to the United Nations Commission on International Law ("UNCITRAL") by Chevron Corporation and Texaco Petroleum Corporation against the ROE under the Ecuador-U.S. Bilateral Investment Treaty. (Doc. 1, P&As at 1 & Doc. 2, Ex. 19.) In that proceeding, Chevron alleges that a case currently pending before the court in Lago Agrio, Ecuador - wherein Chevron is accused of causing billions of dollars in environmental damage - is a "'sham' because the Ecuadorian judiciary is neither independent nor impartial." (Doc. 1, P &As at 1.) Chevron claims that Mr. Hansen and a Mr. Diego Borja videotaped meetings wherein a judge then presiding over the Lago Agrio action was offered bribes in exchange for a ruling adverse to Chevron. (Doc. 1, P &As at 1.)

DISCUSSION

Legal Standard

Title 28 of the United States Code section 1782(a) provides, in relevant part:

The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court.

The purpose of this section is to provide federal court assistance in the gathering of evidence for use in a foreign tribunal. See Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 247, 124 S.Ct. 2466, 159 L.Ed.2d 355 (2004). The section "authorizes, but does not require, a federal district court to provide assistance to a complainant" in a foreign proceeding. Id., at 255.

Further, in exercising its wide discretion to grant discovery pursuant to section 1782, the Supreme Court had indicated that a district court should consider

(1) whether the material sought is within the foreign tribunal's jurisdictional reach and thus accessible absent Section 1782 aid; (2) the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court jurisdictional assistance; (3) whether the Section 1782 request conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States; and (4) whether the subpoena contains unduly intrusive or burdensome requests. In addition, district courts must exercise their discretion under Section 1782 in light of the twin aims of the statute: providing efficient means of assistance to participants in international litigation in our federal courts and encouraging foreign countries by example to provide similar means of assistance to our courts.

In re Application of Chevron Corp., ___ F.Supp.2d ___, 2010 WL 1801526 *6 (S.D.N.Y. May 6, 2010), citing Intel Corp v. Advanced Micro Devices, Inc., 542 U.S. at 264-65, internal quotations omitted.

Lastly, an ex parte application is an acceptable method for seeking discovery pursuant to section 1782 of Title 28 of the United States Code. See In re Letters Rogatory from ...


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