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In Re Application of:

September 12, 2011

IN RE APPLICATION OF:
REPUBLIC OF ECUADOR AND DR. DIEGO
CARRION, THE ATTORNEY GENERAL OF THE
REPUBLIC OF ECUADOR,
APPLICANTS,



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

For the Issuance of Subpoenas Under 28 U.S.C. § 1782(a) for the Taking of Depositions of and the Production of Documents by Douglas M. Mackay for Use in a Foreign Proceeding.

ORDER GRANTING REPUBLIC OF GARCIA ECUADOR'S EX PARTE APPLICATION FOR THE ISSUANCE OF A SUBPOENA (Document 1)

ORDER DENYING CHEVRON'S MOTION TO STAY THE APPLICATION (Document 17)

RELEVANT BACKGROUND

On June 3, 2011, the Republic of Ecuador and Dr. Diego Garcia Carrion, the Attorney General of the Republic of Ecuador (collectively referred to herein as "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 Douglas M. Mackay for the taking of a deposition and the production of documents for use in a foreign proceeding. (See Docs. 1 & 2.) The application was originally filed in the Sacramento Division of the Eastern District of California, however, the matter was reassigned to the Fresno Division, and the undersigned, as a related case pursuant to the order of Magistrate Judge Gregory G. Hollows dated June 10, 2011. (Doc. 7.)

The ROE seeks the issuance of a subpoena to Douglas M. Mackay, whom works in Davis, California. (Docs. 1-2 at 6, 1-5 & Ex. 45.) It asserts 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. 1-2 at 6.) In that proceeding, Chevron alleges that a trial court's order in the Lago Agrio, Ecuador, action, wherein Chevron was recently ordered to pay over $18 billion dollars in damages, is a sham, contending the foreign court was neither independent nor impartial. (Doc. 1-2 at 6.) During the course of the Lago Agrio action, Chevron introduced two reports by Dr. Mackay to rebut expert reports offered by Plaintiffs regarding environmental pollution claims. One the reports was also submitted in the Treaty Arbitration proceeding to contend that the foreign trial court lacked any basis upon which to find Chevron liable or to award Plaintiffs damages. (Doc. 1-2 at 6-7.)

APPLICATION FOR ISSUANCE OF A SUBPOENA TO DOUGLAS M. MACKAY FOR THE TAKING OF A DEPOSITION AND THE PRODUCTION OF DOCUMENTS FOR USE IN A FOREIGN PROCEEDING*fn1

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 has 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., 709 F.Supp.2d 283, 290 (S.D.N.Y. May 6, 2010), citing Intel Corp v. Advanced Micro Devices, Inc., 542 U.S. ...


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