Home › Case briefs › Civil Procedure

Republic of Ecuador v. Bjorkman

United States District Court for the District of Colorado · 2011 · Civil Procedure

Civil ProcedureDiscovery28 U.S.C. § 1782Stay of discoveryforeign tribunalUNCITRALsubpoenanonparticipant

Facts

The Republic sought discovery from Bjorn Bjorkman, a Fort Collins, Colorado resident who had authored environmental expert reports for Chevron concerning TexPet's conduct in Ecuador. The Republic wanted the discovery for use in a bilateral investment treaty arbitration before a UNCITRAL arbitral body, where the validity of the Lago Agrio judgment was at issue. Chevron and Bjorkman opposed the request, arguing that the arbitral tribunal itself could order discovery and that the federal court should not interfere with the tribunal's process. Chevron also argued that any subpoena should be narrowed under Rule 26 protections for expert materials and later moved to stay enforcement of the subpoena order.

Issue

Whether the court should authorize a subpoena under 28 U.S.C. § 1782 to obtain testimony and documents from Bjorkman for use in the UNCITRAL arbitration, and whether enforcement of that order should be stayed pending review. More specifically, the court had to decide whether the statutory requirements and discretionary Intel factors supported discovery and whether movants showed good cause for a stay.

Rule

A district court may grant discovery under 28 U.S.C. § 1782 when the target resides or is found in the district, the discovery is for use in a proceeding before a foreign or international tribunal, and the application is made by a foreign tribunal or an interested person. Even when those statutory requirements are met, the court retains discretion and considers the Intel factors, including whether the target is a participant in the foreign proceeding, the nature of the proceeding, the foreign tribunal's receptivity, whether the request circumvents foreign discovery restrictions, and whether it is unduly intrusive or burdensome. Assertions of privilege or work-product protection must comply with Rule 26(b)(5). A stay of a magistrate judge's discovery order under D.C. Colo. LCivR 30.2B requires good cause and is not automatic upon objection.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

A manufacturing company organized in Argentina is defending itself in a commercial arbitration seated in Paris. It applies in the District of Colorado for a subpoena to depose Lena Ortiz, a geologist who lives in Boulder and is not a party to the arbitration, seeking her files for use in that arbitration.

Assuming the arbitration qualifies as a foreign or international tribunal, which is the best basis for granting the application?

Explanation. Section 1782 is satisfied when the person from whom discovery is sought resides or is found in the district, the discovery is for use in a proceeding before a foreign or international tribunal, and the application is made by the tribunal or an interested person. A party to the foreign proceeding qualifies as an interested person, and the statute permits testimony and document production. (Derived from Republic of Ecuador v. Bjorkman (n.d.).)