230 F. Supp. 3d 467
E.D. Va.2017Background
- Rivada Networks filed an ex parte application under 28 U.S.C. § 1782 to issue two subpoenas (deposition and document production) for use in a Mexican constitutional appeal and potential Mexican civil litigation.
- A magistrate judge granted Rivada’s § 1782 request; a deposition of Brett Haan (who helped prepare a confidential SCT Business Model) began in the Eastern District of Virginia on Dec. 20, 2016.
- Altan Redes (successor to Altan Consortium, the party that won the Mexican contract) was not given notice of the § 1782 subpoenas or the Haan deposition; portions of Haan’s testimony were already submitted to the Mexican court.
- Altan Redes moved to intervene under Fed. R. Civ. P. 24 and sought (a) to bar Rivada from using the deposition in Mexico or publicly, (b) an opportunity to cross-examine Haan in the ongoing deposition, (c) notice for future § 1782 discovery, and (d) inspection of produced documents.
- Rivada argued the matter was moot and that § 1782 and the Federal Rules did not require notice to expected foreign adversaries.
- The district court found jurisdiction, permitted intervention (in part), held Altan Redes was entitled to notice under the Federal Rules as incorporated by § 1782, denied the blanket suppression request, and ordered that Altan Redes be allowed to inspect produced materials and to examine Haan during the continued deposition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing / mootness | Rivada: case moot; Altan Redes lacks standing | Altan Redes: faces concrete injury from use of evidence against it | Court: Altan Redes has standing; case is not moot |
| Intervention under Rule 24 | Rivada: Altan Redes did not exist when § 1782 filed, so no right | Altan Redes: timely motion; shares legal/factual questions; adverse interest | Court: permissive intervention granted; Rule 24(b) satisfied |
| Notice requirement for § 1782 subpoenas | Rivada: ex parte § 1782 applications are routine; Rules not triggered to require notice here | Altan Redes: § 1782 incorporates the Federal Rules; Rules 27/30/45 require notice to expected adverse parties | Court: § 1782 incorporates the Federal Rules; Altan Redes entitled to notice and should have been served |
| Remedy for lack of notice and use of testimony | Rivada: no relief; transcripts already used in Mexico | Altan Redes: seek protective order barring use and opportunity to cross-examine | Court: denied suppression/protective order banning use; ordered inspection of produced materials and permitted Altan Redes to examine Haan in continued deposition |
Key Cases Cited
- S. Walk at Broadlands Homeowner's Assoc., Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175 (4th Cir.) (jurisdictional limits and mootness principles)
- United States v. Hardy, 545 F.3d 280 (4th Cir.) (mootness as jurisdictional limit)
- Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (mootness viewed as standing over time)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (constitutional standing requirements)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing elements)
- Teague v. Bakker, 931 F.2d 259 (4th Cir.) (Rule 24(a) intervention standard)
- Smith v. Pennington, 352 F.3d 884 (4th Cir.) (discretion for permissive intervention)
- In re Letter of Request From Crown Prosecution Serv., 870 F.2d 686 (D.C. Cir.) (party against whom § 1782-produced information may be used has standing to challenge)
- Atl. Purchasers, Inc. v. Aircraft Sales, Inc., 705 F.2d 712 (4th Cir.) (Federal Rules prevent surprise/procedural ambush)
- In re Letters Rogatory from Tokyo Dist. Prosecutor's Office, 16 F.3d 1016 (9th Cir.) (Rule 27 notice requirement in § 1782 context)