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In re ex parte Application of Government of Lao People's Democratic Republic

United States District Court, D. Idaho

June 30, 2017

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.

         Currently 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.

         BACKGROUND

         An 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 application.[1]

         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.

         28 U.S.C. § 1782

         The 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.

         Before 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).

         If the 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).

         PRIOR ORDER AND CURRENT STATUS

         The 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[2] between Lao Holdings and the Lao PDR would be revived, also satisfying the second statutory ...


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