Giraldo v. Drummond Company Incorporated
808 F. Supp. 2d 247
D.D.C.2011Background
- Plaintiffs seek deposition of former President Alvaro Uribe in a pending ATS/TVPA suit against Drummond Co. Inc. et al.
- The United States submitted a Statement of Interest suggesting Uribe has residual immunity for information related to acts taken or obtained in his official capacity.
- Plaintiffs contend only illegal acts are at issue, so such acts should not be protected by official immunity.
- Uribe held government office (President of Colombia or Governor of Antioquia) during the relevant times relevant to the deposition topics.
- The court framed the issue as whether foreign official immunity applies to testimony about acts in official capacity and whether jus cogens violations negate immunity.
- The court ultimately denied the motion to compel testimony and required exhaustion of other reasonably available means before deposing about information outside official acts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Uribe enjoys foreign official immunity for information tied to acts in his official capacity | Pl. Uribe acted within official capacity; immunity should not bar testimony about illegal acts. | Uribe has residual immunity for acts in official capacity; testimony is barred. | Uribe has residual immunity for official-capacity information; motion denied. |
| Whether jus cogens violations defeat foreign official immunity | Alleged jus cogens violations should remove immunity. | Jus cogens violations do not defeat immunity under common law. | Jus cogens violations do not defeat immunity; immunity preserved. |
| Whether comity and exhaustion of other means are required before deposing a foreign official | Discretion to depose should be broad if information exists; comity not controlling. | Need to exhaust other reasonably available means; comity weighs against intrusive discovery. | Exhaustion of other reasonably available means is required before deposition. |
Key Cases Cited
- Samantar v. Yousuf, 560 U.S. 279 (2010) (foreign official immunity governed by common law; two-step process)
- Belhas v. Ya'alon, 515 F.3d 1279 (D.C. Cir. 2008) (jus cogens not an FSIA immunity exception; status of immunity discussed)
- Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438 (D.C. Cir. 1990) (sovereign immunity is an immunity from trial, not just liability)
- Matar v. Dichter, 563 F.3d 9 (2d Cir. 2009) (Executive Branch determination that a foreign leader should be immune)
- Ye v. Zemin, 383 F.3d 620 (7th Cir. 2004) (jus cogens concerns and immunity considerations in foreign cases)
- Saudi Arabia v. Nelson, 507 U.S. 349 (1993) (foreign state's exercise of police power treated as sovereign, within immunity scope)
- In re Papandreou, 139 F.3d 247 (D.C. Cir. 1998) (comity concerns regarding deposing foreign officials)
- Societe Nationale Industrielle Aerospatiale v. United States Dist. Court, 482 U.S. 522 (1987) (comity and burden concerns in discovery involving foreign plaintiffs)
- Jimenez v. Aristeguieta, 311 F.2d 547 (5th Cir. 1962) (distinguishes crimes within official duties from acts outside official capacity)