United States District Court, D. Idaho
In re Ex Parte Application of THE GOVERNMENT OF THE LAO PEOPLE'S DEMOCRATIC REPUBLIC, Applicants.
MEMORANDUM DECISION AND ORDER
Honorable Ronald E. Bush Chief U.S. Magistrate Judge.
pending before the Court are two motions. In the first (Dkt.
20), John K. Baldwin, John K. Baldwin IIR Trust, Bridge
Capital, LLC, and Sanum Investments Limited (collectively,
“Movants”) request the Court to vacate the Ex
Parte Memorandum Decision and Order on Ex Parte Application
for Discovery issued on January 19, 2016. In the second (Dkt.
29), the Applicant, Government of the Lao People's
Democratic Republic, moves for Revocation of Order Granting
Pro Hac Vice Appearance.
initial application for discovery pursuant to 28 U.S.C.
§ 1782 was filed in this Court on August 18, 2015 (Dkt.
1). Filed ex parte, the Court granted the application on
January 19, 2016 (Dkt. 13). The Court did not know at the
time, and counsel for the Applicant did not make known, that
the Government of the Lao People's Democratic Republic
(“Lao PDR” or “Applicant”), had filed
a similar application two months earlier in the District
Court for the Northern Mariana Islands. The application in
the Northern Marianas case was denied by U.S. Magistrate
Judge Heather L. Kennedy on April 7, 2016. See In re
Application of the Government of Lao People's Democratic
Republic, 2016 WL 1389764 (D. N. Mar. I. April 7, 2016).
Notably, that application was not filed ex parte and Bridge
Capital, one of the Movants in this case, opposed the
Court will not restate the factual and procedural background
nor reconstruct its entire analysis but instead will focus on
the two proceedings that it considered in earlier granting
the application and then will decide with the additional
record now before the Court whether the grant of the
application should remain intact, or whether it should be
undone. A more complete factual background is contained in
the Court's initial order granting the application.
See Dkt. 13.
U.S.C. § 1782
purpose of Section 1782 is “to provide federal-court
assistance in gathering evidence for use in foreign
tribunals.” Intel Corp. v. Advanced Micro Devices,
Inc. (“Intel”) 542 U.S. 241, 247
(2004). Section 1782(a) provides in pertinent part:
The district court of the district in which a person resides
or is found may order him to ... produce a document or other
thing for use in a proceeding in a foreign or international
tribunal.... The order may be made ... upon the application
of any interested person and may direct that the testimony or
statement may be given, or the document or other thing be
produced, before a person appointed by the court.
granting a Section 1782 application, courts first must
confirm three statutory requirements are present: “(1)
the discovery sought is from a person residing in 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 a foreign or
international tribunal or an interested person.”
In re Ex Parte Apple Inc.
(“Apple”), 2012 WL 1570043, at *1 (N.D.
Cal. May 2, 2012) (citation and internal quotation marks
omitted). If the three requirements are present, and if
discovery would not violate any legally-applicable privilege,
“a district court is free to grant discovery in its
discretion.” Schmitz v. Bernstein Liebhard &
Lifshitz, LLP, 376 F.3d 79, 83-84 (2d Cir. 2004)
(quotation omitted); 28 U.S.C. § 1782(a).
statutory requirements are present, four factors (known as
the “Intel factors”) guide the decision as to
whether to grant the application:
(1) whether the “person from whom discovery is sought
is a participant in the foreign proceeding”; (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 judicial assistance”; (3) whether the
discovery request is an “attempt to circumvent
proof-gathering restrictions or other policies of a foreign
country or the United States”; and (4) whether the
discovery is “unduly intrusive or burdensome.”
Apple, 2012 WL 1570043, at *1 (quoting
Intel, 542 U.S. at 264-65). Further, the district
court should exercise its discretion with the “twin
aims” of Section 1782 in mind: (1) “providing
efficient assistance to participants in international
litigation” and (2) “encouraging foreign
countries by example to provide similar assistance to our
courts.” Intel, 542 U.S. at 252 (internal
quotation marks omitted).
ORDER AND CURRENT STATUS
Court's prior order (Dkt. 13) focused on the second
statutory factor, a “foreign tribunal, ” and
specifically whether a criminal investigation into Baldwin or
his entities involving allegations of bribery and tax fraud
constituted a “foreign tribunal.” The Court
concluded that it did. (Dkt. 13, p. 4.) The Court also
concluded that it was within “reasonable
contemplation” that the BIT (Bilateral Investment
Treaty) arbitration between Lao Holdings and the Lao PDR would
be revived, also satisfying the second statutory