Abubakar v. Chicago State UniversityAbubakar v. Chicago State University
*1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
In re Application of ATIKU ABUBAKAR No. 23 C 5099
For an Order Directing Discovery from Jeffrey T. Gilbert
CHICAGO STATE UNIVERSITY Unitеd States Magistrate Judge Pursuant to 28 U.S.C. 1782.
§
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Atiku Abubakar’s Application Pursuant to
I. BACKGROUND
Atiku Abubakar was Vice-Present of Nigeria from 1999 to 2007 and was a
candidate for president in Nigeria’s presidential election that occurred in February
2023. Memorandum of Law In Support of Application for Judicial Assistance
Pursuant to
Mr. Abubakar filed the present Application pursuant to
1], at 1. The discovery Mr. Abubakar is seeking relates to his challenge as to the authenticity of the diploma President Tinubu submitted to the INEC and also to othеr educational records from CSU that Mr. Abubakar says are related to that challenge. Applicant’s Memorandum [ECF No. 4], at 3-5.
When the Application was filed, Mr. Abubakar’s Petition was pending before the Nigerian Court of Appeal. Application [ECF No. 1], at 1. On September 6, 2023 during the briefing on his Application, Mr. Abubakar notified the Court that the Nigerian Court of Appeal reportedly issued a ruling on his election challenge, finding in favor of President Tinubu and against Mr. Abubakar. Applicant’s Reply [ECF No.
22], at 1. Mr. Abubakar has represented to this Court that he intends to appeal to the Supreme Court of Nigeria. Id.
II. PROCEDURAL HISTORY On August 2, 2023, Mr. Abubakar (“Applicant”) filed his Application [ECF No. 1] and Memorandum [ECF No. 4] in support of his Application, seeking discovery from Respondent on the CSU documents at issue. The presiding District Judge referred the Application to this Magistrate Judge for resolution. [ECF No. 7].
The day after the Application was filed, President Tinubu (“Intervenor”) filed a Motion to Intervene [ECF No. 10], which Applicant did not oppose. See Applicant’s Response to Bola A. Tinubu’s Motion to Join or Intervene [ECF No. 13]. The District Judge granted the Motion to Intervene on August 7, 2023, and this Court set a date for Intervenor to file a response to the Application and for Applicant to file a reply.
[ECF Nos. 14, 15]. On August 23, 2023, CSU filed its Response to Application
Pursuant to
As mentioned above, when Applicant filed his Application for discovery in the district court, his Petition challenging the presidential election was pending before the Nigerian Court of Appeal. On September 6, 2023, Applicant filed his Reply [ECF No. 22] and notified the Court that the Nigerian Court of Appeal reportedly issued a ruling on his election challenge that same day, finding in favor of Intervenor and against Applicant. [ECF No. 22], at 1-2; see also Second Declaration of Angela M. Liu *4 (“Second Liu Decl.”) [ECF No. 23], at ¶5. Applicant further explained that he has until September 27, 2023, to file his appeal of that ruling to the Supreme Court of Nigeria, which he states he intends to do. Id. ; see also Declaration of Ahmed Tijjani Uwais (“Uwais Decl.”) [ECF No. 24], at ¶13.
In light of the time constraints to file his appeal to the Supreme Court of Nigeria, Applicant narrowed the scope of the discovery he is seeking from CSU.
Compare [ECF Nos. 38, 39] (revised subpoenas) with [ECF Nos. 1-1, 1-2] (original subpoenas). [1] Specifically, Applicant wants to serve four document requests, seeking true and correct copies of: (1) an exemplar of a CSU diploma issued in 1979; (2) Intervenor’s diploma issued in 1979; (3) any exemplar of a CSU diploma that “contains the same font, seal, signatures, and wording (other than the name of the recipient and the specific degree awarded) as contained in Exhibit C to the First Liu Declaration, which purports to be a CSU diploma issued to Mr. Tinubu on or about June 22, 1979;” and (4) the CSU documents that were certified and produced by Jamar Orr (an associate general counsel at CSU) as well as communications relating to these documents (the “Orr Documents”). [ECF No. 38], аt 4-5 (revised subpoena for production of documents).
Applicant also wants to take a
After Applicant narrowed his discovery requests and in light of the tight timeframe, the Court requested a substantive response from Respondent to the revised subpoenas and asked CSU to file any objections it had to the scope of the revised subpoenas prior to the hearing. CSU filed its Response to Court Order Dated September 8, 2023 (“CSU’s Second Response”) [ECF No. 32]. Prior to the hearing, Intervenor also requested and was granted leave to file a Sur-Response to Reply in Support of Application (“Intervenor’s Sur-Response”) [ECF No. 33].
Mr. Abubakar as Applicant, CSU as the responding party from whom discovery is being sought, and President Tinubu as Intervenor have filed briefs with the Court setting forth their positions regarding the propriety of the discovery sought in the Application and submitted evidence for the Court’s consideration. The Court held a hearing on September 12, 2023, and heard arguments from the parties.
III. ANALYSIS
A. The Statutory Requirements of
1. The Discovery is “For Use” in the Nigerian Proceedings
To obtain discovery under
GmbH v. Biomet, Inc.
,
Applicant argues the discovery he seeks from Respondent regarding the
authenticity of documents Intervenor submitted to the INEC or more broadly related
*8
to the status of Intervenor’s degree from CSU is “for use” in the Nigerian Proceedings,
including Applicant’s intended appeal to the Supreme Court of Nigeria, within the
meaning of
Applicant questions the authenticity of the CSU diploma Intervenor presented to the INEC before the election because, among other things, a second CSU diploma has since emerged (dated June 27, 1979) that bears the name “Bola Ahmed Tinubu” but also presents with a different font, punctuation, seal, and signatures, than the June 22, 1979 diploma, among other alleged discrepancies. Applicant’s Memorandum [ECF No. 4], at 2-6; Applicant’s Reply [ECF No. 22], at 5-6. Applicant also references other documents allegedly produced by CSU for use in related electoral challenge proceedings in Nigeria that he says raise additional questions about the authenticity of the diploma that Intervenor submitted to the INEC and his other educational *9 records from CSU. Applicant’s Memorandum [ECF No. 4], at 6; Applicant’s Reply [ECF No. 22], at 8 (citing Uwais Decl. [ECF No. 24] at ¶6 & Ex. D). Because of the discrepancies in some of the documents purportedly issued by CSU, Applicant says there are questions about whether all the CSU documents actually came from CSU and when they were created. Applicant’s Memorandum [ECF No. 4], at 6; Applicant’s Reply [ECF No. 22], at 6. Although Applicant acknowledges that CSU has stated that Intervenor did, in fact, graduate from CSU on June 22, 1979, Applicant still questions whether President Tinubu actually attended and received an undergraduate degree from CSU. Applicant’s Reply [ECF No. 22], at 5-6. At least in the Court’s view, however, the primary issue that animates Applicant’s position in this case appears to be whether a CSU diploma in the name of “Bola Ahmed Tinubu” dated June 22, 1979, that was submitted to the INEC before the Nigerian presidential election in February 2023 is genuine or was forged.
Intervenor contends that the discovery Applicant seeks is not relevant to the Nigerian Proceedings because issues regarding his educational background were not referenced specifically in Applicant’s Petitiоn filed with the Court of Appeal. See Intervenor’s Response [ECF No. 21], at 5-6 (citing [ECF No. 5-2]). Those matters instead were raised in Applicant’s reply materials filed in support of the Petition. As addressed further below, the Nigerian Court of Appeal declined to consider issues related to Intervenor’s educational background that had not been included in Applicant’s Petition but rather were belatedly raised for the first time in Applicant’s *10 reply filings. See September 6, 2023 Judgment in the Presidential Election Petition Court (“Nigerian Court of Appeal Decision”) [ECF No. 34], at 545-558, 606, 608-09. [3]
Applicant responds that in his intended appeal of the Nigerian Court of Appeal Decision, the Supreme Court of Nigeria can consider new evidence in “exceptional circumstances” under the Nigerian Electoral Act of 2022 and/or in its discretion, and he provides a declaration to that effect from his counsel in the Nigerian Proceedings. Applicant’s Reply [ECF No. 22], at 10; Uwais Decl. [ECF No. 24], at ¶12 & Ex. G. Applicant further argues that whether the Supreme Court of Nigeria actually would consider any evidence obtained through discovery in this case is irrelevant to the “for use” analysis because the statute does not impose a foreign admissibility requirement. Applicant’s Reply [ECF No. 22], at 7.
Based on the record submitted with the Application, the Court agrees with
Applicant. In
Brandi-Dohrn v. IKB Deutsche Industriebank AG
, the Second Circuit
joined several other circuit courts in concluding “as a district court should not
consider the discoverability of the evidence in the foreign proceeding, it should not
consider the admissibility of evidence in the foreign proceeding in ruling on a
Consistent with this authority, it is sufficient for purposes of
Based on this record, the Court finds Applicant has satisfied the statutory requirement that the requested discovery is “for use” in a proceeding before a foreign tribunal—in this case, specifically, Applicant’s anticipated appeal to the Supreme Court of Nigeria.
2. Applicant is an “Interested Person” in the Nigerian Proceedings
To obtain discovery under
July 6, 2022), report and recommendation adopted,
3, 2022) (holding that because the applicant is a party to the underlying foreign
litigation he is an “interested person” within the meaning of
Applicant argues he is an “interested person” because the discovery he seeks from Respondent will be used in his intended appeal of the Court of Appeal Decision denying his Petition to the Supreme Court of Nigeria. Applicant’s Memorandum [ECF No. 4], at 11; Applicant’s Reply [ECF No. 22], at 8. Intervenor argues that Applicant is not an “interested person” because the information he seeks to discover from CSU was not contained in his initial electoral challenge Petition but rather was produced in a different proceeding to which Applicant was not a party. Intervenor’s Response [ECF No. 21], at 7-8. It is undisputed, however, that the evidence Intervenor *14 references eventually was presented to the Nigerian Court of Appeal and the Court of Appeal decided not to consider it for the reasons addressed above. [5]
Even though the Nigerian Court of Appeal declined to consider the late- submitted evidence, Applicant has submitted evidence to this Court that the argument was raised in the Nigerian Proceedings (albeit late), and Applicant is a party to those proceedings. Id. ; see also Nigerian Court of Appeal Decision [ECF No.
34], at 545-558, 606, 608-09. Applicant also unequivocally has stated he intends to appeal the Nigerian Court of Appeal Decision, and will present any new evidence he can obtain from CSU on the diploma issue as well as Intervenor’s educational records from CSU to the Supreme Court of Nigeria. He thus will be a party to those Supreme Court proceedings as well.
Based on the record submitted with the Application and the arguments presented during the Sеptember 12, 2023 hearing, the Court finds that Applicant has satisfied the “interested party” statutory requirement.
B. On Balance, the Discretionary Factors Weigh in Favor of Granting the Application for Discovery
Because Applicant has satisfied the statutory requirements under 28 U.S.C
(1) whether “the person from whom discovery is sought is a participant in the foreign proceeding”;
(2) “the nature of the foreign tribunal, the character of the proceedings underway abroad, and the receptivity of the foreign government or the court or agency abroad to U.S. federal-court judicial assistance”; (3) whether the discovery request “conceals an attempt to circumvent foreign proof-gathering restrictions or other policies of a foreign country or the United States”; and
(4) whether the discovery requested is “unduly intrusive or burdensome.”
Id.
at 264-65. The Supreme Court also recognized that
1. The Parties’ Burdens Under
Intel
Before the Court discusses the
Intel
factors, it must first consider whether, as
Applicant suggests, the Court should employ a burden-shifting framework to properly
*16
weigh the
Intel
discretionary factors.
See
Applicant’s Memorandum [ECF No. 4], at
12. In
Department of Caldas v. Diageo PLC
, 925 F.3d 1218 (11th Cir. 2019), the
Eleventh Circuit held that “the Supreme Court, in announcing the discretionary
There is one case in the Seventh Circuit that discussed a burden-shifting
framework after the applicant in a
Other circuits, however, have declined to adopt a strict burden-shifting
approach. In
In re Schlich
, the First Circuit concluded that the Supreme Court in
Intel
“intended for both parties to make their arguments as to all of the [discretionary]
factors, and for the district court to then determine whom those factors favor.” 893
F.3d at 50. “In this sense,” the First Circuit explained, “we do not see the factors as
creating a burden for either party to meet, but rather as considerations to guide the
*17
district court’s decision.”
Id.
Similarly in
Department of Caldas v. Diageo PLC
, the
Eleventh Circuit preferred the First Circuit’s “middle-of-the-road approach” and held
that “district courts need not apply a rigid burden-shifting framework to properly
weigh the discretionary factor of receptivity in a
This Court will follow the Seventh Circuit’s guidance and employ a burden- shifting framework when analyzing the discretionary factors and also will address the parties’ arguments on how to balance each of the discretionary factors. The Court will now turn to the Intel discretionary factors.
2. The First
Intel
Factor Weighs in Favor of Granting the Application
The first discretionary factor looks to whether “the person from whom
discovery is sought is a participant in the foreign proceedings.”
Intel
,
The parties agree that CSU is not a party in the Nigеrian Proceedings and is beyond the jurisdictional reach of the Nigerian courts. [6] Accordingly, the Court finds that factor one weighs in favor of granting the Application.
3. The Second Intel Factor Does Not Weigh Against Allowing the Discovery Sought in the Application
The second discretionary factor looks to whether the foreign court would accept
assistance from a federal district court.
See Intel
, 542 U.S. at 264;
see also In re
Bayerische Motoren Werke AG
,
In
Heraeus Kulzer
, the Seventh Circuit concluded the district court abused its
discretion in denying the discovery sought under
[7]
See
,
e.g., In re Biomet Orthopaedics Switzerland GmBh
,
discovery who was also party to the German proceedings, did not ask “the German court for a ruling that would bar or limit Heraeus’s U.S. discovery” and further noted “[t]he measures that Biomet has not taken in this discovery dispute are eloquent testimonials to the weakness of its position.” Id. , at 596–97. Nevertheless, the Seventh Circuit has not specifically defined what evidentiary showing under the second Intel factor would be sufficient to weigh against an application or satisfy the burden on the party opposing discovery. See id. , at 597 (describing burden on litigant opposing discovery as “to demonstrate, by more than angry rhetoric that allowing the discovery sought (or a truncated version of it) would disserve the statutory objectives.”). Moreover, the Seventh Circuit has not analyzed the receptiveness inquiry in the context presented here, which turns on whether a foreign tribunal (the Supreme Court of Nigeria) that has nоt yet had the opportunity to consider the evidence sought in this Application would be receptive to such evidence.
Intervenor points to the recent Nigerian Court of Appeal Decision, issued after this Application was filed, which declined to consider the question of the authenticity of his diploma from CSU on the procedural grounds that this argument and the evidence proffered in support of it were raised in late submissions. Intervenor’s Sur- Response [ECF No. 32], at 5; Nigerian Court of Appeal Decision [ECF No. 33], at 545- 558, 606, 608-09. Based on that Decision, Intervenor asserts the Supreme Court of Nigeria would not be receptive to the discovery sought in the Application. [8]
The Court is not persuaded by Intervenor’s argument. The record before the
Court does not establish the Supreme Court of Nigeria would necessarily reject the
evidence sought in the Application. As discussed above, Applicant intends to appeal
the Nigerian Court of Appeal Decision. He submitted evidence to this Court that the
Supreme Court of Nigeria can consider new evidence in exceptional circumstances.
Applicant’s Reply [ECF No. 22], at 10; Uwais Decl. [ECF No. 24], at ¶12 & Ex. G.
Intervenor does not contend that Applicant cannot argue to the Supreme Court of
Nigeria that exceptional circumstances permit the introduction of the evidence
Applicant is seeking from CSU. Rather, Intervenor argues, in effect, it is unlikely the
Supreme Court of Nigeria will consider or admit that evidence given, in part, the
decision not to do so by the Court of Appeal. Although Applicant acknowledges
establishing exceptional circumstances to warrant the consideration of new evidence
is “a demanding standard” (Applicant’s Reply [ECF No. 22], at 10), Intervenor does
not dispute that a legal mechanism exists for the Supreme Court of Nigeria to
consider new evidence obtained by the discovery sought in this Application.
[9]
that it has none—at least not yet” because “[applicant] does not need these documents to
make out its claim, then no purpose would be served by their production in the United States
under
[9] Although Intervenor was granted leave to file a Sur-Response, he did not respond to Applicant’s evidence that the Supreme Court of Nigeria may consider new evidence in еxceptional circumstances. Moreover, Intervenor’s reliance on Venequip, S.A. v. Caterpillar,
To that end, Intervenor has not satisfied his burden to show that allowing this discovery would “disserve the statutory objectives.” See Heraeus Kulzer , 633 F.3d at 597. [10] Applicant has articulated a procedural mechanism by which he may be able to introduce to the Nigerian Supreme Court the evidence he is seeking from CSU in his Application. The Court does not know whether the Supreme Court of Nigeria will be receptive to that evidence, but that is not determinative, as explained above. Accordingly, the Court concludes the second Intel factor does not weigh against allowing the discovery sought in the Application. [11]
Inc.
, 2022 WL 823856, at *2 (N.D. Ill. Mar. 18, 2022) to argue the Application should be
denied based on the asserted lack of receptiveness of the Nigerian courts to Applicant’s
arguments is misplaced. [ECF No. 33] at 5. Rather, the district court in
Venequip
concluded
the second
Intel
factor was “neutral” where the record submitted as to Swiss law “suggests
that . . . the Swiss courts would not consider [evidence obtained via
[10] Even if this Court had applied a less rigid burden-shifting analysis and used a more balanced approach, the Court still would have concluded that the second Intel factor does not weigh against allowing the discovery sought in the Application.
[11]
See Heraeus Med. GmbH
,
4. The Third Intel Factor Does Not Weigh Against Allowing the Discovery Sought in the Application
The third discretionary factor looks to whether the
Applicant says he has no reason to believe that any of the discovery he is
seeking would circumvent any foreign proof-gathering restriction or policy in Nigeria.
Applicant’s Memorandum [ECF No. 4], at 15. In response, Intervenor says it is
unclear whether, under the appropriate circumstances, a Nigerian election court
might consider material gathered using
There is no evidence in the record to suggest that granting the Application would undermine or circumvent any Nigerian policy, and both Applicant and Intervenor say the third Intel factor is neutral. Based on the evidence and arguments presented, the Court agreеs with the parties that the third Intel factor does not weigh against allowing the discovery sought in the Application.
5. The Fourth Intel Factor Does Not Weigh Against Allowing the Discovery Because Any Burden on CSU Can Be Resolved by Limiting the Discovery
Under the final discretionary factor, the Court looks to see if the requested
discovery is “unduly intrusive or burdensome.”
Intel
, 542 U.S. at 241. This factor
requires an examination of the breadth of the discovery requests for the court to
determine whether it is unduly intrusive or burdensome.
See In re Labor Court of
Brazil
, 466 F. Supp. 2d at 1031.
2012). Instead, it is a screening mechanism “designed for preventing abuses of the
right to conduct discovery in a federal district court for use in a foreign court. Once
the court has determined that such abuses are unlikely, the ordinary tools of
discovery management, including
Therefore, if a district court decides to allow the discovery to proceed, the
discovery requests are managed under
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. *24 Information within this scope of discovery need not be admissible in evidence to be discoverable.
In his Reply, Applicant narrowed the scope of the discovery he is seeking. The Court, therefore, will consider the discovery requests contained in the revised subpoenas. See [ECF Nos. 38, 39]. As discussed above, there arе now four narrowed document requests, which relate to the two different versions of Intervenor’s CSU diplomas, that have been presented to this Court (documents that purport to be dated June 22 and 27, 1979), any similar diplomas issued by CSU to anyone other than Intervenor, and the Orr documents allegedly certified by CSU’s Associate General Counsel, Jamar Orr, for use by Intervenor in the related case bought by Mr. Obi that now has been consolidated with Applicant’s case. See First Liu Decl. [ECF 5-3], Ex. C (June 22, 1979 Diploma); First Liu Decl. [ECF 5-5], Ex. C (June 27, 1979 Diploma); Uwais Decl. [ECF No. 24-4], Ex. D (Orr documents).
The revised
Intervenor first argues the discovery Applicant seeks is intrusive because educational records are private and protected by both federal and state law from disclosure, and it is burdensome because CSU has submitted an affidavit confirming Intervenor graduated from CSU in June 1979 which is all the information that is relevant here. Intervenor’s Response [ECF No. 21], at 13-14, see also Westberg Affidavit [ECF No. 21-3], at 1-2. Again, however, framing the relevance issue in this way ignores a central tenet of the Application, which is not necessarily whether Intervenor attended CSU (though that is a part of Applicant’s argument) but whether the June 22, 1979 CSU diploma that Intervenor presented to the INEC is an authentic copy of Intervenor’s actual diploma issued by CSU.
With respect to Intervenor’s privacy interest in his educational records, under
the Family Educational and Privacy Rights Acy (“FERPA”), a plaintiff has a right of
privacy in his educational records.
See McDaniel v. Loyola Univ. Med. Ctr.
, 2015 WL
13901029, at *2 (N.D. Ill. Apr. 28, 2015) (citing
Black v. Kyle-Reno
,
Id.
(citing
Catron v. Miles
, 215 Ariz. 446, 453 (2007);
see also Ragusa v. Malverne
*26
Union Free School Dist.
,
Here, the Court finds that Applicant’s interest in obtaining Intervenor’s
records from CSU outweighs Intervenor’s privacy rights because Intervenor put his
diploma at issue by submitting it to the INEC. Intervenor also submittеd other
educational documents in a related proceeding in Nigeria, some of which were
certified by a CSU official, as discussed above. Further discovery into the CSU
records, therefore, is relevant to the arguments Applicant intends to make to the
Supreme Court of Nigeria, as discussed above.
See McDaniel
,
Applicant also argues that Intervenor does not have standing to object to the supposed burden the discovery would place on CSU. The Court agrees with Applicant on the issue of standing. CSU is the proper party to raise any burden associated with Applicant’s discovery requests, other than with respect to Intervenor’s privacy interest which is discussed above.
With respect to burden, CSU notes that, as the discоvery respondent, “it is not a party to any of the Nigerian election proceedings, has no stake in the outcome of those proceedings, and does not take any position on the legal issues that have been litigated there.” CSU’s Second Response [ECF No. 32], at 1. CSU emphasizes that it has limited information that would be relevant to the Nigerian proceedings. CSU’s First Response [ECF 20], at 1-2; CSU’s Second Response [ECF No. 32], at 1-2. It, therefore, urges the Court not to allow the discovery to proceed because, among other reasons, it is a public university and already has devoted a significant amount of time and legal expense to discovery for proceedings in Nigeria. CSU’s Second Response [ECF No. 32], at 2.
In the Court’s view, these reasons are not sufficient for the Court to deny completely the Application. CSU seems to acknowledge its arguments may be insufficient to merit denial of the Application because it also requests that “any discovery which may be directed here be focused in scope and take into account the information CSU has already provided, as well as the information CSU has already notified Applicant’s counsel it does and does not possess.” CSU’s Second Response [ECF No. 32], at 2. Because there is no evidence in the record to suggest that granting the Application would constitute an abuse of the right to conduct discovery in a federal district court for use in a foreign court, the Court finds that the fourth Intel factor does not weigh against allowing most of the discovery sought in the Application to proceed and that the Court can address any burden issues by limiting the discovery Applicant can seek as discussed below.
The Court has reviewed the narrowed requests in Applicant’s revised subpoenas. [ECF Nos. 38, 39]. As to the revised requests for the production of documents, CSU does not object to the first three document requests but does object in part to Request No. 4. Id. at 3. Becausе CSU does not object to responding to Request Nos. 1 through 3, the Court orders CSU to answer Request Nos. 1 through 3 and produce all responsive, non-privileged documents, if any, within 48 hours of the issuance of this Memorandum Opinion and Order. The Court notes, parenthetically, that CSU has proffered that it does not save or retain diplomas it issues to its graduates so CSU may not have any documents to produce in response to Request Nos. 1, 2, or 3.
Respondent CSU does not object to producing true and correct copies of the Orr
documents pursuant to Request No. 4. CSU does, however, object to producing “all
communications to or from CSU concerning the certification of such documents by
Jamar C. Orr, Esq., during the period of August 1, 2022 to August 1, 2023” based on
undue burden and expense to the extent Applicant is seeking an expedited production
of electronically stored information and communications. The Court agrees with
Respondent and finds this portion of Request No. 4 to be an unduly burdensome
request particularly given the tight timeframe created in no small part by Applicant
in filing his Application in August 2023 with respect to a presidential election held in
February 2023 and documents submitted to the INEC in mid-2022. A complete
response to Request No. 4 likely would require Respondent to identify document
custodians, agree with Applicant on key words, run key word searches in the custodial
*29
databases, and produce electronically stored information all on an extreme and
unrealistic time frame. In addition, at least a portion of what Applicant hopes to
discover with this document request potentially can be obtained under Topic No. 5 in
a
As to the revised subpoena for a
In essence, CSU is seeking a protective order to prevent Applicant from taking
an oral
Global Material Techs., Inc. v. Dazheng Metal Fibre Co., Ltd.
,
Here, CSU has not established good cause for the Court to require Applicant
to proceed with a deposition by written questions. In the Court’s view, an oral
deposition is the most effective method to obtain information from a deponent under
the circumstances of this case. Therefore, the Court overrules CSU’s objections and
orders that the
IV. CONCLUSION
For all of the reasons discussed above, Atiku Abubakar’s Application Pursuant
to
Notes
[1] The narrowed subpoenas originally were filed by Applicant at [ECF Nos. 22-1, 22-2]. Corrected versions of the narrowed subpoenas subsequently were filed by Applicant at [ECF Nos. 38, 39]. Accordingly, the Court considers the corrected versions of the narrowed subpoenas that Applicant filed at [ECF Nos. 38, 39].
[2] The “Westberg Affidavit” is defined in the subpoena as the Affidavit of Caleb Westberg, the Registrar of CSU, attached to the Intervenor’s Response to the Application. See [ECF No. 39] (citing [ECF No. 21-1]).
[3] Applicant’s Petition in the Nigerian Proceedings generally raised the argument that Intervenor “was at the time of the Election not qualified to contest the Election,” but apparently without the addition of supporting facts or evidence. See Applicant’s Reply [ECF No. 22], at 3-4 (citing Declaration of Angela Liu In Support of the Application (“First Liu Decl.”) [ECF No. 5], Ex. B, Petition in Abubakar et al. v. INEC et al. , at ¶16(d); see also [ECF No. 5], Ex. B at ¶146. Applicant submitted a declaration from one of his attorneys in the Nigerian Proceedings attesting that arguments and evidence about the authenticity of Intervenor’s diploma were submitted by Applicant in those Proceedings. Uwais Decl. [ECF No. 24], at ¶4. In addition, that declaration also states that a related case (brought by Peter Obi and the Nigerian Labour Party) raised questions about additional documents related to Intervenor’s educational background (the Orr Documents), and that Mr. Obi’s case has been consolidated with Applicant’s proceeding. Uwais Decl. [ECF No. 24], at ¶6. The Court notes the Nigerian Court of Appeal Decision declined to consider that evidence and the underlying argument that Intervenor was not qualified to participate in the Nigerian electiоn because the argument was raised for the first time in reply filings rather than in the initial Petition. [ECF No. 34], at 545-558, 606, 608-09. The Court understands Applicant intends to appeal that Decision, and as discussed below, Applicant submitted evidence in support of his argument that there is a mechanism by which new evidence could be presented to the Supreme Court of Nigeria.
[4]
See
,
e.g.
,
John Deere Ltd. v. Sperry Corp.
, 754 F.2d 132, 136 n.3 (3d Cir. 1985) (“[i]t is
doubtful” the legislative history of
[5] As noted above, Applicant’s Petition in the Nigerian Proceedings generally raised the argument that Intervenor was not qualified to participate in the election without citing to specific supporting facts or evidence. See Applicant’s Reply [ECF No. 22], at 3-4 (citing First Liu Decl. [ECF No. 5-2], Ex. B at ¶16(d)); see also [ECF No. 5-2], Ex. B at ¶146; Uwais Decl. [ECF No. 24], at ¶4. Apрlicant specifically identified and discussed the forged documents argument in his reply filings in support of his Petition to the Nigerian Court of Appeal. Uwais Decl. [ECF No. 24], at ¶7; see also Nigerian Court of Appeal Decision [ECF No. 34], at 545- 558, 606, 608-09.
[6] Although Intervenor acknowledges CSU is not a party to the Nigerian Proceedings, Intervenor contends this factor weighs against granting the Application because it is his (President Tinubu’s) educational records that are sought in the subpoena. Intervenor’s Response, [ECF No. 21], at 9-10. Contrary to Intervenor’s characterization, however, Applicant does not merely seek production of records allegedly already produced by CSU to Intervenor (and that maybe theoretically could have been obtained from Intervenor in the Nigerian Proceedings). Rather, Applicant is seeking information from CSU about the
[8] Intervenor cites Kestrel Coal PTY. LTD. v. Joy Global, Inc. , 362 F.3d 401, 406 (7th Cir. 2004). Intervenor’s Response [ECF No. 21], at 11. In that decision, the Seventh Circuit found that where the presiding justice in the foreign tribunal in the proceedings for which the discovery was sought had “already . . . analyzed [applicant’s] need for the documents and held