878 F. Supp. 2d 1296
S.D. Fla.2012Background
- This §1782(a) application was brought by Mesa Power seeking discovery in aid of NAFTA arbitration against NextEra.
- Mesa Power sought documents and seven executive-depositions related to Ontario FIT program, Canada communications, and bid processes.
- NextEra moved to quash the subpoena and deposition subpoenas arguing under Intel factors the discovery is improper and burdensome.
- The court referred the motion, heard argument, and determined discovery should be granted with tailoring to Canada communications.
- Arbitration proceedings were recognized; the court concluded §1782(a) permits assistance even if the foreign proceeding is not fully matured, and relief should be tailored to minimize burden on NextEra.
- Production ordered for 2009–2011 communications between NextEra and Canada, with broader production deferred pending further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1782 disclosure is appropriate in aid of NAFTA arbitration | Mesa Power argues Intel factors favor grant of discovery | NextEra contends discovery is premature, burdensome, and risks trade secrets | Yes; discovery denied to NextEra-limited scope, with tailored production of Canada communications. |
| Whether the requests are unduly burdensome or intrusive | Requests are relevant and reasonably tailored to the foreign proceeding | Requests are burdensome and invasive, lacking specificity | No; most requests are relevant and tailored; undue burden not established; protective measures to address confidentiality will be used. |
| Whether the requests sufficiently relate to the foreign proceeding under Intel | Information about Canada-NextEra communications is central to NAFTA arbitration | Some discovery should be limited pending arbitration progress | Yes; communications between NextEra and Canada are central and within §1782 scope. |
Key Cases Cited
- Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (Supreme Court 2004) (establishes broad discretion and factors for §1782(a) aid)
- In re Clerici, 481 F.3d 1324 (11th Cir. 2007) (absent foreign requirement, §1782 relief may be sought even if proceeding not pending)
- In re Consorcio Ecuatoriano de Telecomunicaciones S.A., 685 F.3d 987 (11th Cir. 2012) (broad functional construction of 'tribunal' and applicability to private arbitrations)
- United Kingdom v. United States, 238 F.3d 1312 (11th Cir. 2001) (discretionary factors and scope of discovery in §1782 proceedings)
- In re Microsoft Corp., 428 F.Supp.2d 188 (S.D.N.Y. 2006) (illustrates considerations of discovery already in foreign hands and access)
- In re Chevron Corp., 762 F.Supp.2d 242 (D. Mass. 2010) (weighs receptivity and foreign-proceeding concerns in applying Intel factors)
- In re Dr. Braga, 789 F.Supp.2d 1294 (S.D. Fla. 2011) (discusses relevance and tailoring in 1782 discovery)
- In re Request for Assistance from Ministry of Legal Affairs of Trinidad and Tobago, 848 F.2d 1151 (11th Cir. 1988) (earlier articulation of 1782 framework)