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Lars Bauer

Denial of Section 1782 Discovery Based on District Court's Discretion Highlights Differ... - 1 views

blog.internationalpractice.org/?p=1361

28-USC-1782 case-notes law discovery

shared by Lars Bauer on 17 Apr 11 - No Cached
  • Caratube involved a § 1782 petition by the oil company directed at persons and entities in the U.S., which Caratube claimed had information helpful to its prosecution of an international arbitration before ICSID (the International Centre for Settlement of Investment Disputes).  The ICSID tribunal declined to ask Caratube to cease and desist the § 1782 discovery requests.  It did say that it didn’t want the U.S. discovery petition to interfere with the arbitration, and the tribunal reserved on the question whether to admit documents obtained through the § 1782 petition.
  • In the § 1782 proceeding, the District Court exercised its discretion to deny the § 1782 request.
  • the District Court relied on several of the considerations articulated in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004).
  • ...4 more annotations...
  • It found that uncertainty about whether ICSID would accept the documents weighed against granting the discovery and further believed that the nature of the ICSID proceeding – arising by reason of a bilateral investment treaty between the U.S. and Kazakhstan – somehow put the court in a position of possibly interfering with the “parties’ bargained-for expectations concerning the arbitration process”.  The District Court did not analyze whether the ability to get U.S. discovery under § 1782 formed a part of the parties’ expectations in the first place. 
  • The Court was moved by the fact that Caratube had outlined the discovery it thought was necessary in the arbitration and apparently did not include a § 1782 request.
  • Indeed, the Rules of the International Bar Association, which the District Court found persuasive authority as a guideline giving indications regarding the relevant criteria for what documents may be requested and ordered to be produced, says specifically that a party should “take whatever steps are legally available to obtain the requested documents”.  Although the IBA rules suggest that that request go to the arbitral panel, in the U.S. there is a statute that permits the party going directly to the third-party with the documents using the vehicle of a § 1782 petition.
  • In the end the District Court was concerned that Caratube was attempting to “circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States”. 
  • Lars Bauer on 17 Apr 11
     
    In re Application of Caratube, 10-0285 (D.D.C. 2010) [730 F.Supp. 2d 101]
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