Application of Consorcio Ecuatoriano De Telecomunicaciones S.A. v. JAS Forwarding (USA), Inc.
685 F.3d 987
11th Cir.2012Background
- CONECEL filed a §1782(a) application in the Southern District of Florida seeking discovery from JAS USA for use in Ecuadorian foreign proceedings, including an arbitration and potential civil/criminal actions against former CONECEL employees.
- The district court granted ex parte discovery and authorized a subpoena; JASE intervened and challenged the order.
- The Ecuadorian arbitration between CONECEL and JASE is a first-instance decisionmaker that can receive evidence, render a binding award, and is reviewable, satisfying §1782’s foreign-tribunal criterion.
- The discovery request focused on JAS USA’s invoicing/rates affecting CONECEL and was argued to involve confidential pricing information.
- The district court treated the arbitration as a foreign-tribunal proceeding and denied JASE’s motions; the district court’s ruling was appealed.
- The panel affirmed, holding that §1782(a) applies to the arbitration and that the discovery was narrowly tailored and not unduly burdensome.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the arbitration is a proceeding in a foreign tribunal under §1782(a) | CONECEL argues arbitration is a foreign tribunal | JASE contends there is no such proceeding | Yes; arbitration qualifies as a foreign-tribunal proceeding under §1782(a) |
| Whether disclosure would reveal confidential pricing information and whether the district court abused its discretion | CONECEL asserts requests are narrowly tailored to CONECEL-related pricing | JASE claims the requests reveal confidential pricing and are intrusive | No abuse of discretion; discovery is narrowly tailored and not unduly burdensome |
| Whether the district court properly denied reconsideration of its §1782 order | CONECEL/appeal contends reconsideration was warranted by new evidence | JASE argues new evidence undermines the basis for discovery | Affirmed; new evidence was not material and would not likely change outcome |
Key Cases Cited
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (U.S. 2004) (broad definition of ‘tribunal’ and factors for discretionary review under §1782(a))
- In re Clerici, 481 F.3d 1324 (11th Cir. 2007) (four Intel factors; deference to district court on discovery; scope guided by Rule 26)
- United Kingdom v. United States, 238 F.3d 1312 (11th Cir. 2001) (abuse-of-discretion review for §1782 discovery rulings; factors guidance)
- Roz Trading Ltd., 469 F. Supp. 2d 1221 (N.D. Ga. 2006) (private arbitrations may fall within §1782’s scope under Intel framework)
- Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576 (U.S. 2008) (Fed. Arb. Act exclusive grounds for review; relevance to §1782 review)
- White Springs Agric. Chems., Inc. v. Glawson Invs. Corp., 660 F.3d 1277 (11th Cir. 2011) (discretion in discovery orders and scope under §1782)
- Kazakhstan v. Biedermann Int'l, 168 F.3d 880 (5th Cir. 1999) (concerns about arbitration discovery burdens; Intel framework adopted)
- National Broadcasting Co. v. Bear Stearns & Co., 165 F.3d 184 (2d Cir. 1999) (categorical distinctions re private vs governmental tribunals displaced by Intel)