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In re Application of Grupo Unidos Por El Canal

United States District Court, N.D. California

October 27, 2014

In re Application of GRUPO UNIDOS POR EL CANAL, S.A.,

ORDER GRANTING EX PARTE APPLICATION FOR ORDER UNDER 28 U.S.C. § 1782 TO OBTAIN DISCOVERY FROM URS CORPORATION AND URS HOLDINGS, INC. FOR USE IN INTERNATIONAL PROCEEDING

DONNA M. RYU, Magistrate Judge.

Before the court is an ex parte application by Grupo Unidos por el Canal, S.A. ("GUPC") for an order to obtain written discovery from URS Corporation ("URS") and URS Holdings, Inc. ("URS Holdings") for use in an international arbitration. Having considered GUPC's papers and accompanying submissions, the court grants the application.

I. BACKGROUND

GUPC is a Panama-based company that is constructing the Panama Canal expansion. Menes Decl. [Docket No. 2] at ¶ 2. In August 2009, as part of a program to expand the Panama Canal, GUPC entered into a contract with Autoridad del Canal de Panama ("ACP"), a legal entity of the Republic of Panama established pursuant to the Panamanian Constitution. Application at 7; Menes Decl. at ¶ 3, Ex. 3. Construction on the Panama Canal expansion is ongoing.

GUPC, ACP, and others parties are engaged in an international arbitration currently proceeding under the auspices of the International Chamber of Commerce ("ICC"). Id. at ¶ 11-12, Exs. 10-11. GUPC alleges that ACP has failed to perform its obligations, including by concealing and withholding information regarding the true nature of the existing conditions and status of aspects of the canal expansion.

URS is a company based in the United States that provides engineering, construction, and technical services for public agencies and private sector companies around the world. Id. at ¶ 5, Ex. 4. URS Holdings is a subsidiary of URS. Id. at ¶ 6, Ex. 5. According to GUPC, since at least 2007, URS and/or URS Holdings have worked as environmental and engineering consultants to ACP in connection with the Panama Canal expansion project, and URS publicly holds itself out as having performed a wide range of services for the project, including an environmental impact study. Id. at ¶ 7-8, Exs. 6-7. Both URS and URS Holdings are headquartered in San Francisco. Id. at ¶ 9-10, Exs. 8-9.

GUPC states on information and belief that due to their role as advisors to ACP, URS and URS Holdings have custody and control over documents relevant to the arbitration, specifically documents relating to GUPC's claims that ACP withheld and misrepresented information about the canal expansion project.

II. LEGAL STANDARDS

GUPC's application is brought pursuant to 28 U.S.C. § 1782, which states as follows:

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... 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.... To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.

28 U.S.C. § 1782(a). The purpose of Section 1782 is "to provide federal-court assistance in the gathering of evidence for use in a foreign tribunal." Intel Corp. v. Advanced Micro Devices, Inc. , 542 U.S. 241, 247 (2004); see also Schmitz v. Bernstein Liebhard & Lifshitz, LLP , 376 F.3d 79, 84 (2d Cir. 2004) (noting that Section 1782 has the "twin aims" of "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") (quotations omitted).

A district court is authorized to grant a Section 1782 application where (1) the person from whom the 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 proceeding before a foreign tribunal, and (3) the application is made by a foreign or internal tribunal or "any interested person." 28 U.S.C. § 1782(a); see also In re Republic of Equador, No. C-10-80255-CRB (EMC), 2010 WL 3702427 at *2 (N.D. Cal. Sept. 15, 2010).

"However, simply because a court has the authority under § 1782 to grant an application does not mean that it is required to do so." In re Republic of Equador, 2010 WL 3702427 at *2 (citing Intel, 542 U.S. at 264). The Supreme Court has identified several discretionary factors that a court should take into consideration in ruling on a Section 1782 request:

(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 ...

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