Federal District Court Opinions
IN RE APPLICATION OF ROZ TRADING LTD., (N.D.Ga. 12-19-2006)
In re Application of: ROZ TRADING LTD. Elizabeth Square P.O.
Box 847 Grand Cayman Grand Cayman Islands British West
Indies, Applicant. 1:06-cv-02305-WSD. United States
District Court, N.D. Georgia, Atlanta Division. December
19, 2006
OPINION AND ORDER
WILLIAM DUFFEY JR., District Judge
This matter is before the Court on the Application of Roz
Trading, Ltd. for an Order Directing The Coca-Cola Company
to Produce Documents Pursuant to 28 U.S.C. § 1782
For Use in A Proceeding Before a Foreign Tribunal [1]
(“Application”)[fn1], Respondent The Coca-Cola Company’s
Opposition to Page 2 Petitioner’s Application for
Discovery Pursuant to 28 U.S.C § 1782[7]
(“Response,”), and Roz Trading’s Reply in Support of Its
Application for Discovery Under 28 U.S.C. § 1782[8]
(“Reply”).
I. BACKGROUND
This dispute concerns Roz Trading, Ltd.’s (“Petitioner’s”)
request that the Court compel The Coca-Cola Company
(“Respondent”) to produce documents for use in arbitration
proceedings (“foreign arbitration”) before an arbitral panel
of the International Arbitral Centre of the Austrian
Federal Economic Chamber in Vienna (the “Centre”), in which
Petitioner, Respondent’s subsidiary The Coca-Cola Export
Company (“CCEC”), and others are involved. The foreign
arbitration concerns an alleged breach of contract between
Petitioner and CCEC. The contract was entered into in
connection with a joint venture between Petitioner, CCEC,
and the government of Uzbekistan (the “joint venture”).
Petitioner alleges the government of Uzbekistan violently
seized Petitioner’s interest in the joint venture.[fn2]
Petitioner alleges that its employees, fearful for their
lives, left Uzbekistan. Under the circumstances of their
departure, Petitioner claims its employees were unable to
Page 3 take any corporate documents with them, and that
they have been to this day unable to return to Uzbekistan
to retrieve them. Petitioner alleges that CCEC and the
Respondent assisted the Uzbek government in eliminating
Petitioner from the joint venture.
Petitioner has filed a claim before an arbitral panel of
the Centre, pursuant to the contract governing the joint
venture. Petitioner requests this Court to exercise its
discretion under 28 U.S.C. § 1782(a) to compel
Respondent to produce documents for those arbitration
proceedings.
In this case, two issues determine whether the Court will
grant Petitioner’s Application: i) whether the Court has
the authority to entertain the Application, specifically,
whether the scope of 28 U.S.C. § 1782(a) includes
proceedings before an arbitral panel of the Centre; and ii)
whether the factors listed in Intel Corp. v. Advanced Micro
Devices, Inc., 542 U.S. 241 (2004) favor granting the
Application.
II. DISCUSSION
A. Authority to Entertain the Application
The Court first considers whether § 1782(a)
authorizes it to entertain the Application. Section 1782(a)
provides: Page 4
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. By
virtue of his appointment, the person appointed has power
to administer any necessary oath and take the testimony or
statement. The order may prescribe the practice and
procedure, which may be in whole or part the practice and
procedure of the foreign country or the international
tribunal, for taking the testimony or statement or
producing the document or other thing. 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) (2006).
Section 1782(a) allows the Court to entertain Petitioner’s
request if: i) the target of the discovery “resides or is
found” within this District; ii) the requesting party is a
foreign or international tribunal or an “interested person”
in the foreign proceeding; and iii) the discovery is
requested “for use in a proceeding in a foreign or
international tribunal.” Page 5
Respondent does not dispute that the first two conditions
have been met. Respondent’s corporate headquarters are
located in this judicial district, and Petitioner is a
party to the arbitration for which the discovery is
requested. Respondent also does not dispute that Petitioner
requests discovery for use in a foreign proceeding.
Respondent argues, however, that the Centre is not a
“tribunal” within the meaning of the statute. Respondent
contends that, because the Centre is a private institution
whose proceedings are voluntary and arbitral, an arbitral
panel convened by the Centre is not a “tribunal” within the
meaning of § 1782(a).
This issue is both interesting and one of first impression
in this Circuit. The seminal Supreme Court case
interpreting § 1782(a) is Intel Corp. v. Advanced
Micro Devices, Inc., 542 U.S. 241 (2004). Although the
Supreme Court in Intel did not address the precise issue of
whether private arbitral panels are “tribunals” within the
meaning of the statute, it provided sufficient guidance for
this Court to determine that arbitral panels convened by
the Centre are “tribunals” within the statute’s scope.
In Intel, the Supreme Court held that the
Directorate-General of Competition for the Commission of
the European Communities (“DG-Competition”) was a Page 6
“tribunal” within the meaning of § 1782(a). This body
“is the European Union’s primary antitrust law enforcer.”
Id. at 250. The DG-Competition accepts antitrust complaints
and conducts preliminary investigations. Id. at 254. The
DG-Competition’s decisions are “subject to review in the
Court of First Instance and the European Court of Justice.”
Id. at 255.
The Supreme Court’s reasons for finding the DG-Competition
to constitute a “tribunal” in that case are instructive.
The Supreme Court began by restating its firmly held
principle that “in all statutory construction cases, we
begin . . . with the language of the statute.” Id. quoting
Barnhart v. Siqmon Coal Co., 534 U.S. 438, 450 (2002). The
Supreme Court began its statutory construction by noting
that, in a 1964 amendment to § 1782, “Congress
deleted the words `in any judicial proceeding pending in
any court in a foreign country,’ and replaced them with the
phrase `in a proceeding in a foreign or international
tribunal.'” Intel, 542 U.S. at 248-49 (citations omitted).
The Supreme Court also observed: “Congress understood that
change to provide the possibility of U.S. judicial
assistance in connection with administrative and
quasi-judicial proceedings.” Id. at 258 (internal quotation
omitted). The Supreme Court stated expressly, albeit in
dicta: “[T]he term `tribunal’ . . . includes investigating
magistrates, administrative and Page 7 arbitral tribunals,
and quasi-judicial agencies, as well as conventional . . .
courts.” Id., quoting Hans Smit, Int’l Lit. Under the
United States Code, 65 Colum. L. Rev. at 1026-27 (1965)
(emphasis added).
In considering the status of the DG-Competition, the
Supreme Court found that § 1782(a) “authorizes, but
does not require, a federal district court to provide
assistance to a complainant in a European Commission
proceeding that leads to a dispositive ruling, i.e., a
final administrative action both responsive to the
complaint and reviewable in court.” Id. at 255. The Court
also reasoned that the DG-Competition “is a § 1782(a)
`tribunal’ when it acts as a first-instance decisionmaker.”
Id. at 247. That is, the Supreme Court found the
DG-Competition to constitute a § 1782(a) tribunal to
the extent that it acted as a first-instance decisionmaker,
capable of rendering a decision on the merits, and as part
of the process that could ultimately lead to final
resolution of the dispute.
A finding that an arbitral panel of the Centre is a
“tribunal” within the meaning of § 1782(a) is
consistent with the reasoning in Intel. Although Intel did
not expressly hold arbitral bodies to be “tribunals,” it
quoted approvingly language that included “arbitral
tribunals” within the term’s meaning in § 1782(a).
The Supreme Court also determined the DG-Competition to
constitute a “tribunal” Page 8 when it acted as a
first-instance decisionmaker in a proceeding “that leads to
a dispositive ruling, i.e., a final administrative action
both responsive to the complaint and reviewable in court.”
Id. at 255. The Centre’s arbitral panels are similarly
“first-instance decisionmaker[s]” that issue decisions
“both responsive to the complaint and reviewable in court.”
Respondent does not dispute that the Centre “is constituted
to hear disputes, weigh evidence, and issue rulings that
will finally bind the parties in accordance with its Rules
. . .” (Memorandum of Law in Support of Pet. App. at 11.)
Respondent also does not dispute that the Centre’s orders
“are enforceable in Austrian courts . . .” (Id.) The
Centre, when examined under the same functional lens with
which the Supreme Court in Intel examined the
DG-Competition, must necessarily be considered a “tribunal”
under § 1782(a).
Statutory construction of § 1782(a) confirms this
conclusion. The first step of statutory construction is to
start “with the words of the statutory provision.” CBS Inc.
v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1222 (11th
Cir. 2001). When “the words of a statute are unambiguous .
. . this first canon is also the last: judicial inquiry is
complete.” Merritt v. Dillard Paper Co., 120 F.3d 1181,
1186 (11th Cir. 1997). See also United States v. Turkette,
452 U.S. 576, 580 (1981). When examining the words of a
statute, “[i]n the absence of a statutory definition Page
9 of a term, we look to the common usage of words for
their meaning.” CBS, 245 F.3d at 1222. When the words used
are terms of art, a “cardinal” rule of statutory
construction is that:
[W]here Congress borrows terms of art in which are
accumulated the legal tradition and meaning of centuries
of practice, it presumably knows and adopts the cluster of
ideas that were attached to each borrowed word in the body
of learning from which it was taken and the meaning its
use will convey to the judicial mind unless otherwise
instructed. In such case, absence of contrary direction
may be taken as satisfaction with widely accepted
definitions, not as a departure from them.
Morissette v. United States, 342 U.S. 246, 263 (1952).
When the language of a statute is unambiguous, courts are
not entitled to impose their own limitations upon it. See
e.g., Turkette, 542 U.S. at 587 (reversing the First
Circuit’s construction of RICO because the limitations
imposed were mandated by “neither the language nor
structure of RICO . . .”). Unless there is a “clearly
expressed legislative intent to the contrary, [unambiguous]
language must ordinarily be regarded as conclusive.” Id. at
580 (quotation omitted).
Both the “common usage” and “widely accepted definition”
of “tribunal” include arbitral bodies. See, e.g., Scherk
v. Alberto-Culver Co., 417 U.S. 506, 519-25 (1974)
(referring to the International Chamber of Commerce of
Paris as a Page 10 “tribunal”); Mitsubishi Motors Corp. v.
Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 627 (1985)
(referring to arbitral bodies generally as “tribunals”);
Baltin v. Alaron Trading Corp, 128 F.3d 1466, 1468 (11th
Cir. 1997) (referring to an arbitral body as a “tribunal”).
See also Smit, International Litigation at 1026-027 (“the
term `tribunal’ . . . includes investigating magistrates,
administrative and arbitral tribunals, and quasi-judicial
agencies, as well as conventional . . . courts.”); Black’s
Law Dictionary, “tribunal” (8th ed. 2004) (defining
“tribunal as a “court or other adjudicatory body.”)
(emphasis added); William Blackstone, 3 Commentaries 17
(London, Strahan, Cadell, and Prince 1787) (10th ed.)
(referring to arbitral bodies as “tribunals); Joseph Story,
Commentaries on Equity Jurisprudence § 1457 at 686
(Boston, Little Brown and Co. 1866) (9th ed.) (referring to
private arbitration proceedings as “tribunals”).
The history of amendment to the statute supports a plain
reading of the term “tribunal.” In 1964, Congress by
amendment deleted language that previously limited the type
of adjudicatory body for which § 1782(a) could be
invoked. Congress expressly struck the phrase “judicial
proceeding,” and replaced it with “international or foreign
tribunal.” The clear import of the change is to broaden
Page 11 the scope of the statute to include non-judicial
proceedings.[fn3] The Supreme Court in Intel noted, “The
legislative history of the 1964 revision . . . reflects
Congress’ recognition that judicial assistance would be
available whether the foreign or international proceeding
or investigation is of a criminal, civil, administrative,
or other nature.” 542 U.S. at 259 (internal quotation
omitted). That is, the type of proceeding that Congress
intended to benefit from judicial assistance under §
1782 is broad.
The language of § 1782(a) is unambiguous. The common
usage and widely accepted definition of “tribunal” are
consistent with the structure of the statute. Reading the
statute as a “consistent whole,” Burlison v. McDonald’s
Corp., 455 F.3d 1242, 1245-46 (11th Cir. 2006), the Court
finds that “tribunal” should be construed consistent with
its common usage and widely accepted definition. There is
no clearly expressed legislative intent that the term
“tribunal” does not include arbitral panels such as those
convened by the Centre or that the term should be construed
other than as it is commonly defined. In the absence of
ambiguity, it would be improper for the Court to consider
legislative history or impose its own Page 12 limitations
upon the meaning of the statute’s terms. Turkette, 542 U.S.
at 587
The Centre is an arbitral body whose panels function in
accordance with the widely accepted definition of the term
“tribunal” The Court holds that the Centre is a “foreign or
international tribunal” within the meaning of §
1782(a).
Respondent argues that Intel does not apply and that the
Court should instead be guided by the decisions in Nat’l
Broad. Co., Inc. v. Bear Stearns & Co., Inc., 165 F.3d 184
(2d. Cir. 1999) and Republic of Kazahkstan v. Beidermann,
168 F.3d 880 (5th Cir. 1999). These decisions are cited to
support Respondent’s contention that only governmental
bodies qualify as “tribunals” under § 1782(a). Both
of these cases were decided five years before Intel. Their
reasoning, and particularly that of Nat’l Broad. Co., is
materially impacted by Intel. The reasoning in Intel
demonstrates the structural and analytical flaws in the
Second and Fifth Circuits’ interpretations of §
1782(a).
The Second Circuit in Nat’l Broad. Co. found §
1782(a) to be ambiguous with respect to whether the term
“tribunal” includes private arbitral bodies. The Second
Circuit acknowledged that legal and conventional
authorities, including cases, treaties, congressional
statements, and academic writings including the works of
Blackstone and Story, define the term “tribunal” to include
private Page 13 arbitral panels. Despite acknowledging
this uniformly understood definition of “tribunal,” the
court reached the inconsistent conclusion that the term is
ambiguous. 165 F.3d at 188. It summarily concluded that
“the fact that the term `foreign or international
tribunals’ is broad enough to include both state-sponsored
and private tribunals fails to mandate a conclusion that
the term, as used in § 1782, does include both.” Id.
The court then concluded that “the term `foreign or
international tribunal’ is sufficiently ambiguous that it
does not necessarily include or exclude the arbitral panel
at issue here.” Id. The court turned to the legislative
history of § 1782(a) to resolve this “ambiguity,”
and held ultimately that the legislative history suggested
that the term “tribunal” does not include private arbitral
panels.[fn4] Id.
The Supreme Court’s decision in Intel undermines the
reasoning of Nat’l Broad. Co. The Intel court reviewed the
legislative history of § 1782, and found a Page 14
legislative intent to broaden the scope of the term
“tribunal.” It noted specifically that “[t]he legislative
history of the 1964 revision . . . reflects Congress’
recognition that judicial assistance would be available
whether the foreign or international proceeding or
investigation is of a criminal, civil, administrative, or
other nature.” Intel, 542 U.S. at 259 (emphasis added)
(internal quotation omitted). The Supreme Court’s
interpretation and application of the legislative history
contradicts the interpretations and applications of the
Second and Fifth Circuits, which incorrectly concluded that
Congress intended to limit the availability of judicial
assistance under § 1782 to governmental —
that is criminal, civil, or administrative —
proceedings.[fn5] Page 15
The definition of the term tribunal is, in basic terms, a
body that performs a specific adjudicatory function. By
rejecting “categorical limitations” on the scope of
§ 1782(a), id. at 256, and instead determining
whether the DG-Competition constituted a “tribunal” within
the meaning of the statute by analyzing its function, the
Supreme Court elected to treat the term “tribunal” in
accordance with the term’s widely accepted definition. That
is, it is the function of the body that makes it a
“tribunal,” not its formal identity as a “governmental” or
“private” institution. Where a body makes adjudicative
decisions responsive to a complaint and reviewable in
court, it falls within the widely accepted definition of
“tribunal,” the reasoning of Intel, and the scope of
§ 1782(a), regardless of whether the body is
governmental or private. The Supreme Court’s approach
recognizes this reality, and thus undermines the
formalistic approach taken by the Second and Fifth
Circuits.[fn6] Page 16
For these reasons, this Court declines to follow the Second
and Fifth Circuits because, in light of Intel, they are
not persuasive authority. The Court instead relies instead
on the statutory construction above and the reasoning in
Intel.
B. The § 1782(a) Petition
It is within the Court’s discretion to grant or deny an
application under 28 U.S.C. § 1782(a). Intel, 542
U.S. at 246. Several factors guide the Court’s
consideration of an application under § 1782(a):
First, when the person from whom discovery is being
sought is a participant in the foreign proceeding . . .
the need for § 1782(a) aid is generally not as
apparent as it ordinarily is when evidence is sought from
a nonparticipant in the matter arising abroad. A foreign
tribunal has jurisdiction over those appearing before it,
and can itself order them to produce evidence. . . . .
Second, as the 1964 Senate report suggests, a court
presented with a § 1782(a) request may take into
account 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 judicial assistance.
Id. at 244. See also Lopes v. Lopes, 180 Fed. Appx. 874,
877 (11th Cir. 2006). In exercising its informed
discretion, the Court will, in addition to these factors,
Page 17 consider the scope of the information requested and
its relation to the proceedings abroad. Cf. Intel, 542 U.S.
at 245 (noting that “unduly intrusive or burdensome
requests may be rejected or trimmed.”).
Respondent does not dispute that it is not a participant in
the foreign proceeding, and notes that the agreement
governing the joint venture was entered into between
Petitioner and CCEC. Because Respondent was not a named
party to that agreement, it appears that Petitioner cannot
compel Respondent to the arbitral proceeding, and that the
Centre does not have jurisdiction to compel discovery from
Respondent. These circumstances weigh in favor of ordering
discovery, because the foreign tribunal cannot “itself
order [Respondent] to produce evidence.” Id. “[T]he person
from whom discovery is sought must . . . be a person or
entity outside of the jurisdiction of the foreign tribunal .
. .” Lopes, 180 Fed. Appx. at 877 (emphasis added)
(internal quotation omitted). Respondent meets this
criteria.
The nature of the Centre, its character as a place for
formal dispute resolution between international parties,
and its likely receptivity of the aid of this Court, all
weigh in favor of providing judicial assistance. The Centre
is an international commercial arbitral body located in
Vienna. According to Article 1 Page 18 of the Centre’s
Rules of Arbitration, the purpose of the Centre is “to make
arrangements for the settlement by arbitration of disputes
in which not all contracting parties . . . had their place
of business or their normal residence in Austria . . .” The
Centre is fundamentally international in nature. It must
rely on the aid of courts beyond its jurisdiction —
such as United States District Courts acting pursuant to
§ 1782(a) — to enforce its demands and to aid
its inquiries, both within and without Austria.
The Centre is receptive to aid from courts such as this
one. Article 589 of the Centre’s Rules of Civil Procedure
effective at the time Petitioner filed its Statement of
Claims reads:
1. Those judicial acts considered necessary by the
arbitrators but which they have no jurisdiction to
undertake will be carried out by the State Court which has
jurisdiction on the application of the arbitrators. In
case of doubt the application is to be made to the
District Court in whose district the act is to be carried
out or the evidence to be taken.
2. The Court to which the application is made shall
accede to it insofar as it is not legally inadmissable. In
particular the Court shall also take those decisions
regarding taking of evidence which are reserved by the
present statute in the case of taking of evidence on
commission to the Court hearing the case. Page 19
The Centre’s Rules embrace discovery sought through
mechanisms such as § 1782(a). This circumstance also
weighs in favor of the Court granting Petitioner’s request.
Petitioner claims, and Respondent does not dispute, that
many of the documents previously in its possession were
seized or made unavailable to it by the Uzbek government,
and are now in the possession of Respondent. Thus,
Respondent may be the only source for at least some of the
documents requested.[fn7] Petitioner claims further that
Respondent, although not a formal party to the foreign
proceeding, participated in the events that made these
documents unavailable.
Respondent suggests that Petitioner should first seek
discovery from CCEC through the arbitration proceedings.
Respondent argues, “If the arbitration panel orders
Coca-Cola Export to produce documents that are found only
in the possession, custody, or control of The Coca-Cola
Company, The Coca-Cola Page 20 Company will have a strong
incentive to cooperate with its subsidiary.” (Resp. Brief
in Opp. at 15.) This argument is not persuasive. Section
1782(a) does not contain an exhaustion requirement. The
Petitioner meets the requirements of the statute, and is
thus entitled under the present circumstances to seek
judicial assistance for use in the foreign proceeding,
regardless of other discovery means that may be available.
Discovery is particularly appropriate where, as here, the
practical availability of documents requested through other
means of discovery is uncertain.
This case presents a unique set of facts. Petitioner
suggests, and Respondent does not deny, that Respondent was
in some measure involved in the events underlying the
arbitration. Petitioner suggests, and Respondent does not
deny, that some of the documents at issue in the
arbitration may be in Respondent’s exclusive possession,
custody, and control. Petitioner also argues, and
Respondent also does not deny, that many of the purportedly
“public” documents on Petitioner’s discovery list are
closely held by the government of Uzbekistan, and cannot be
accessed by Petitioner without great risk to its personnel.
Respondent, as the CCEC’s parent company, may have superior
or exclusive access to many of the Page 21 documents
relevant to this dispute.[fn8] In light of Petitioner’s
allegations that Respondent was involved to some degree in
the underlying dispute, and in view of the likelihood that
Respondent has unique access to relevant documents, the
Court will exercise its discretion under § 1782(a).
Under § 1782(a), the Court is entitled to order
discovery “in accordance with the Federal Rules of Civil
Procedure.” “[U]nduly intrusive or burdensome requests may
be rejected or trimmed.” Intel, 542 U.S. at 245. This Court
will aid Petitioner to obtain discovery consistent with the
scope imposed by Federal Rule of Civil Procedure 26(b)(1):
Parties may obtain discovery regarding any matter, not
privileged, that is relevant to the claim or defense of
any party. . . . For good cause, the court may order
discovery of any matter relevant to the subject matter
involved in the action. Relevant information need not be
admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of
admissible evidence.
Petitioner first requests “an order directing [Respondent]
to produce all documents relating to [Petitioner], the
government of Uzbekistan, the Maqsudi family, the Karimov
family, and [the joint venture], including its newest
partner . . . Page 22 Zeromax.” (Memorandum of Law in
Support of Peti. App. at 29.) This request is overbroad on
its face. Petitioner demands information in several wide
categories without limitation as to time, or place, and
virtually without limitation as to subject matter.
Alternately, Petitioner presents a list of fifty-four (54)
specific documents or document categories that it seeks
from Respondent (“Documents to Be Produced”) (Pet. App.,
Exh. A). The Court has considered each of these requests,
and they appear to the Court generally relevant to the
dispute, as described in the Statement of Claims filed by
Petitioner in the proceedings before the Centre.[fn9]
The Court will grant the petition with respect to
Petitioner’s “Documents to be Produced,” with the following
limitations:
1. All requests shall be limited to the period of January
1, 2000 to the date of this Order (“Order Date”), with the
exception that requests for documents embodying
communications to or from the Uzbek government or its
officials. Requests for documents embodying communications
to or from Page 23 the Uzbek government or its officials
shall be limited to the period of January 1, 1992 to the
Order date.[fn10]
2. The requests are limited to the extent that documents
concerning private third parties such as Zeromax need only
be produced if they pertain to the joint venture,
communications with the Respondent or members of the joint
venture from January 1, 2000 to the Order Date, inclusive,
or the circumstances of Petitioner’s expulsion from
Uzbekistan.
In accordance with the Rule 37(a)(2)(A), the parties are
directed to work in good faith toward resolving any
disputes regarding the production of this discovery prior
to seeking the aid of this Court. If the parties are unable
to resolve any disputes in good faith, they are directed to
contact the Court to discuss the method for addressing any
disputes they are unable to resolve between themselves.
Accordingly, Page 24
IT IS HEREBY ORDERED that the Application of Roz Trading,
Ltd. for an Order Directing The Coca-Cola Company to
Produce Documents Pursuant to 28 U.S.C. § 1782 For
Use in A Proceeding Before a Foreign Tribunal [1] is
GRANTED. Pursuant to this Order, Respondent is ordered to
produce all documents responsive to the numbered requests
in Petitioner’s “Documents to be Produced” within its
possession, custody, or control. These requests are limited
as discussed above. Respondent is directed to produce the
materials required by this Order on or before 5:00 p.m.,
EST., on January 20, 2007.
SO ORDERED.
[fn1] Local Rule 7.1D limits memoranda supporting motions to
25 pages in length, and reply briefs to 15 pages. The Rule
also requires parties to “certify that the brief has been
prepared with [proper font and point selections].” The
Court notes that the Memorandum in Support of Petitioner’s
Application is 33 pages, and does not contain the required
certification. Although Local Rule 7.1F authorizes the
Court in its discretion to decline to consider the
Application, the Court chooses to excuse Petitioner’s
failure to comply with the Local Rules. The Court
encourages Petitioner to prepare future submissions in
accordance with the Rules.
[fn2] Petitioner alleges that the seizure was apparently
motivated in part by the divorce of Petitioner’s president
from the President of Uzbekistan’s daughter.
[fn3] Had Congress wanted to impose the limitation advanced
by Respondent, it would have been a simple matter to add
the word “governmental” before “the word “tribunal” in the
1964 amendment.
[fn4] The Second Circuit started with the premise that the
term “tribunal” is ambiguous. In essence, the Second
Circuit reasoned that even though the common usage and
widely accepted definition of “tribunal” include private
arbitral bodies, it was free to impose its own limitations
on the statute. This is precisely the type of conduct that
courts engaged in statutory construction are directed to
avoid. Turkette, 542 U.S. at 580, 587; CBS, 245 F.3d at
1222. Even if the Second Circuit found “contrary
indications” to a plain reading of “tribunal” in the
legislative history, it was improper to use such history to
“cloud a text that is clear.” CBS, 245 F.3d at 1222.
[fn5] The Second Circuit’s analysis of the legislative
history is itself not compelling. The Second Circuit relied
primarily on the fact that the term “international
tribunal” in 22 U.S.C. §§ 270-270g, the
statute replaced by § 1782, “applied only to
intergovernmental tribunals.” Nat’l Broad. Co., 165 F.3d at
189-90. Section 270, as quoted by the Second Circuit, read:
“Whenever any claim in which the United States or any of
its nationals is interested is pending before an
international tribunal or commission, established pursuant
to an agreement between the United States and any foreign
government or governments . . .” Id. at App. A. While the
Second Circuit is correct that § 270 was limited to
intergovernmental tribunals, it failed to note that the
statutory language was expressly so limited. The fact that
Congress included the express limitation “established
pursuant to an agreement between the United States and any
foreign government or governments” indicates that when
Congress wants to limit a statute to apply only to
governmental bodies, it is capable of doing so. The Second
Circuit’s interpretation of §§ 270-270g
render this express limitation meaningless, in violation of
the “longstanding . . . general principle that courts must
not interpret one provision of a statute to render another
provision meaningless.” Burlison, 455 F.3d at 1247.
[fn6] The Fifth Circuit’s opinion in Republic of Kazahkstan
v. Beidermann followed expressly Nat’l Broad. Co. Like
Nat’l Broad. Co., Beidermann begins with the unsupported
premise that the term “tribunal” is ambiguous. 168 F.3d at
880-81. Biedermann also relies on legislative history and
policy judgment to construe the statute. Biedermann follows
the same incorrect reasoning as Nat’l Broad. Co., and was
likewise decided without the benefit of Intel. For the same
reasons the Court declines to follow Nat’l Broad. Co., it
also declines to follow Beidermann.
[fn7] Petitioner claims that some of the documents in
Respondent’s possession are purportedly “public” because
they are held by the Uzbek government. The Court accepts
that, as a practical matter, these materials are not
available to Petitioner. Petitioner alleges that acquiring
these documents from the Uzbek government would require
Petitioner’s employees to undertake a substantial risk of
harm or imprisonment.
[fn8] The Court notes that Respondent’s subsidiary CCEC
apparently has not yet disclosed whatever materials it has,
which also may be in Respondent’s possession.
[fn9] The requests in many respects circumstantially
validate Petitioner’s claims that some of its documents
were actually or constructively seized by the Uzbek
government.
[fn10] The January 1, 2000, date appears from the
submissions to be a reasonable time period for discovery
regarding the actions that lie at the heart of this
dispute. Petitioner seeks documents regarding the original
formation of the CCEC and of the joint venture. The Court
is not persuaded that these documents are potentially
relevant, and they are not required to be provided. To the
extent that Petitioner’s requests require the production of
documents concerning amendments or alterations to the joint
venture that were created or dated after January 1, 2000,
these materials are required to be produced.