The case of the day is In re Green Development Corp. (D. Md. 2015). Green Development, a Honduran corporation, was engaged in litigation in the Honduran courts “arising out of its financial and real estate dealings in Honduras.” It had succeeded in the litigation and had a judgment in its favor, which was on appeal before the Honduran Supreme Court. Green claimed that an “unspecified, adverse party” had “engaged in improper, ex parte communications with the Honduran Supreme Court.” In particular, the adverse party had given the Honduran court a copy of an article by Michael McNicholas that contained (according to Green) “outlandish, defamatory claims accusing Green Development’s CEO (Mohammad Yusuf Amdani) and two companies of laundering money in furtherance of international terrorism, smuggling drugs, and even aiding al-Qaeda.” Green brought a § 1782 application seeking production of documents and a deposition of McNicholas in order “to test the factual sufficiency of statements found in the Article” and “to discover information regarding McNicholas’ improper motive.” The purpose, Green claimed, was to submit the discovery to the Honduran Supreme Court in order to “mitigate the adverse effect” of the improper ex parte communication with that court.
The judge found that the statutory prerequisites were met. I think it is worth pausing to ask whether the evidence was really “for use in” the Honduran proceeding. What, exactly, did Green intend to do? It’s not really clear from the decision. Why not just complain to the Honduran court about the improper ex parte communication? Why would Green think that showing the offending article to the judges would have any effect on them? Is there something wrong with the Honduran Supreme Court that gave Green special cause for concern, and if so, why would Green think this discovery could remedy the problem?
In any event, the judge moved on to the Intel analysis. She focused on the circumvention factor. Ordinarily this factor has to do with circumvention of the foreign tribunal’s proof-gathering restrictions, but it can also address circumvention of the public policy of the foreign country or of the United States. Here, the problem was a First Amendment problem. Longtime readers who remember my coverage of the Belfast Project case will remember that I am not sympathetic to claims of a First Amendment reporter’s privilege in the context of a criminal case. This case is civil, not criminal, and so the First Amendment considerations are stronger in the reporter’s favor. This seems particularly so in this case, where—and this is just how things appear to me after reading the decision—Green seems to be using the ex parte communication as a fig leaf to justify delving into the reporter’s sources for purposes that don’t seem to have much to do with the appeal in Honduras.
This is an unusual opinion, and the facts are off the beaten trail. But I think the judge exercised her discretion appropriately. US pretrial discovery is a powerful tool, and it’s important for the judge to ensure that it’s being used only for appropriate purposes.