The case of the day is Republic of Ecuador v. Connor (5th Cir. 2013). I love this case. After Chevron initiated the BIT arbitration against Ecuador, Ecuador sought discovery from GSI Environmental and its owner, John A. Connor, under 28 U.S.C. § 1782. Although Chevron had previously argued around the country that the BIT tribunal was an “international tribunal”, as required to bring its own discovery requests within the scope of the statute, here it argued that the BIT tribunal was not an international tribunal in light of Fifth Circuit precedent. The district court agreed, but the Fifth Circuit has now reversed. I’m not going to go into the details of why the Fifth Circuit determined that Chevron was judicially estopped. The essence of the decision is in the following observation the court made in its discussion: “Why shouldn’t sauce for Chevron’s goose be sauce for the Ecuador gander as well?”
The Fifth Circuit’s decision supports my notion that it would have been wise to consolidate the many § 1782 cases arising out of the Lago Agrio litigation filed around the country in a single district for purposes of deciding whether the subpoenas should have issued in the first instance, if not for purposes of deciding whether particular subpoenas were unduly burdensome, or sought privileged matter, or whatever was particular to individual targets of the subpoenas. In a single sprawling dispute such as this, there should be a single answer to such questions as whether a BIT tribunal is an international tribunal for purpose of the statute.