I noted the Federal Circuit’s curiosity about § 1782 in In re POSCO, a mandamus case in which the court, sua sponte, asked the parties and then the government to brief the question whether § 1782 is the exclusive means to obtain evidence for use in a foreign proceeding.
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The case of the day is In re Application of Grupo Unidos Por El Canal, S.A. (D. Colo. 2015). The Autoridad del Canal de Panama, the agency in charge of the Panama Canal, is in the course of an expansion of the canal to include a third set of locks. Grupo Unidos Por El Canal, one of the contractors engaged on the project, claims that ACP breached its contract with GUPC “by concealing and withholding critical information regarding the true nature of the existing conditions at the Project and the status of other aspects of the Panama Canal expansion.” GUPC demanded arbitration. As provided in the parties’ contract, the arbitration was held in Miami under the ICC Rules. The parties agreed that the arbitration was governed by the FAA, and they agreed that discovery in the arbitration was governed by the IBA Rules on the Taking of Evidence in International Commercial Arbitration.
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In his latest piece on the Second Circuit oral argument in Chevron v. Donziger, esteemed fellow Chevronologist Michael Goldhaber has provided a link to the PDF of the transcript, which…
I’ve written several posts on the extradition case of Alexander Hilton here in Boston. Here’s my summary from the first post:
Hilton, then a student at St. Andrews University, was accused by the Scottish authorities of the attempted murder of Robert Forbes, a fellow student, in March 2011. The claim was that Hilton induced Forbes “to consume a quantity of methanol mixed with red wine.” After the Scottish authorities made a request for extradition, Hilton was arrested on a complaint brought by the US Attorney under 18 U.S.C. § 3184.
Hilton conceded that there was a valid extradition treaty, that the crime charged was covered by the treaty, and that the government had shown probable cause to believe that he had committed the offense charged. However, he resisted extradition. He pointed to his mental health problems, which the magistrate judge could not justify relief. He also claimed that extradition would violate his constitutional rights because under Scots law, Hilton would be tried by a jury of 15, and he could be convicted by a majority vote of the jury.
The magistrate judge rejected this argument and issued a certificate of extraditability.
Readers, I wanted to call two recent posts from Cartas Blogatorias to your attention. First, Javier Ochoa has recommended the new website of the International Academy of Comparative Law. This…
Yesterday was a big day in the Lago Agrio case: oral argument in the Second Circuit. I was there, along with several other Chevronologists, partisans on both sides, and curious members of the public. One young lawyer I met had traveled from Chicago—by train!—just for the event. Happily, the judges didn’t disappoint. There was more drama than I expected.
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The case of the day is In re Estate of Sucich (N.Y. Surr. Ct. 2015). Diana Sucich named her nephew, Nicholas Sucich, in her will, and he was therefore entitled to receive service of a citation in the probate case. However, according to the application of the nominated executor, Wolfson, Nicholas was “alleged to be a fugitive from justice and is believed to have resided in Mexico, under an assumed alias [“Nicolas Francisco”], for the past twenty years.” His sister, another named distributee under the will, had email addresses for him that appeared to work. Wolfson sought leave to serve the citation on Nicholas by email.
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The case of the day is Symons International Group, Inc. v. Continental Casualty Co. (S.D. Ind. 2015). Continental Casualty, the third party plaintiff, won a $34.2 million judgment against the third party defendant, Robert Symons, the successor in interest (maybe the heir, or executor—the decision doesn’t make it clear) of G. Gordon Symons. Symons resided in Canada, and it appears that G. Gordon Symons lived in Canada at the time of his death. Symons appealed, but he did not seek a stay or provide a supersedas bond, which means, in federal practice, that Continental was free to try to execute on the judgment pending the appeal. Continental sought discovery in aid of execution from Symons, but Symons did not respond. Meanwhile, Continental brought an action in Ontario, seeking recognition and enforcement of the US judgment, and it sought an order in Canada requiring the probate of G. Gordon Symons’s will. A Canadian court agreed, though Symons objected on the grounds that probate was premature. Symons moved for a protective order in Indiana on the grounds that “it is improper for [Continental] to simultaneously attempt to enforce its judgment in both the United States and Canada.”
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Readers, remember where we were in the Sharon Stone case? MCSquared had sued Stone and American Program Bureau for damages arising out of the cancellation of Stone’s speaking engagement in Ecuador. Stone and APB have pointed out that the contracts had arbitration agreements and asked for dismissal. MCSquared claimed, without an affidavit, that the signature of its principal, Maria Garay, on the contracts was forged.
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In re POSCO, a petition for a writ of mandamus now pending in the Federal Circuit, is a case for § 1782 watchers to keep an eye on. In 2012, Nippon Steel sued POSCO in Japan for trade secret misappropriation. Both firms were in the business of manufacturing grain-oriented electrical steel. POSCO brought an action for a declaratory judgment in Korea. Nippon sued POSCO for patent infringement and violations of the Lanham Act in New Jersey, while POSCO sought reexamination of Nippon’s patents in the USPTO. The patent issues were being litigated only in the United States; the trade secret issues were being litigated only abroad.
In the US case, the parties agreed on a confidentiality order to allow the exchange of highly confidential information necessary for the litigation of a patent litigation case. The order, as original entered, forbade the use of information exchanged in the foreign lawsuits. Once the order was entered, POSCO produced, so to speak, the crown jewels. Nippon then persuaded the District Court to modify the order to permit use of the confidential information in the foreign litigation. POSCO, alleging that it would suffer irreparable harm if the documents were to be sent abroad, sought a writ of manadamus.
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